People are often surprised when we tell them that neither Ohio nor federal law prohibits employment discrimination against people on the basis of sexual orientation. That might soon change, at least on the federal level.
This week, Senate Majority Leader Harry Reid announced that the Employment Non-Discrimination Act, or “ENDA,” would soon get a vote in the Senate. Most people know that federal law prohibits employment discrimination on the basis of race, color, sex, national origin, religion, age and disability. ENDA would add sexual orientation to that list. It would also outlaw employment discrimination on the basis of gender identity—an individual’s self-conception of their gender, regardless of biological sex at birth.
As the law stands now, the protections for LGBT employees in the workplace are almost non-existent, as we have written about here. Sexual orientation discrimination is legal in twenty-nine states, including Ohio. Discrimination on the basis of gender identity is legal in thirty-three states, also including Ohio. Public sector employees may have some constitutional or statutory protection, but private sector employees have virtually none. One potential claim a private sector LGBT employee might have is for “sex stereotyping,” which occurs when an employee is discriminated against because his or her appearance or mannerisms do not conform to “traditional” gender norms. But those claims are difficult to prove and will not be useful for many LGBT employees facing workplace discrimination. And while the vast majority of Fortune 500 companies have policies prohibiting at least sexual orientation discrimination, they are basically unenforceable by employees.
ENDA would finally provide protection for employees in Ohio, and in every State, who face arbitrary discrimination on the basis of sexual orientation or gender identity. It has been introduced in every Congress since 1994, and has been getting closer and closer to passing. With fifty-four sponsors in the Senate this time, and at least some bipartisan support, ENDA appears fairly likely to pass the Senate. Whether the Speaker of the House will permit ENDA to even come to a vote in the House—let alone whether it would pass there—seems less clear. However, polling shows that a sizable majority of Americans (recently estimated at nearly 70%) support banning LGBT discrimination in the workplace. As a result, it is probably just a matter of time before the swell of public sentiment and political pressure forces Congress to pass ENDA.
Just as we do not tolerate employment discrimination on the basis of race, age, sex, disability, etc., we should not tolerate it on the basis of sexual orientation or gender identity. With Ohio and many other States lagging behind in outlawing this irrational discrimination, Congress may finally be stepping up to the plate. Stay tuned.