Should Gay Women Be Protected from Discrimination in the Workplace?

The US Supreme Court is readying itself to hear three cases on whether current discrimination laws should extend protections to sexual orientation and gender identity.

Two of the cases involve the alleged discrimination of gay people by their employees, and a third case involves the discrimination faced by a transgender person.

The Supreme Court is citing Title VII of the Civil Rights Act of 1964 in its listing of these cases – it is the section that prohibits employers from discriminating on the basis of race, colour, religion, sex and national origin.

This section has become a point of contention as it does not explicitly reference sexual orientation or gender identity, and lower courts have been divided in recent years on whether these protections should apply to them.

In February, a federal court of appeals for the 2nd Circuit ruled in favour of an employee who sued for wrongful termination based on his sexual orientation. They concluded that discrimination based on sexual orientation was a “subset of sex discrimination” because discriminating against someone for being attracted to someone of the same sex was, arguably, based on what sex they are.

"A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women," the majority wrote in the New York appeals court decision. "We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."

However, a Georgia court came to different outcome. A child welfare services coordinator claimed he was fired for being gay, and the 11th Circuit Court in Atlanta ruled this was legal, citing a 1979 case that ruled the Civil Rights Act did not protect discrimination based on sexuality.

The Supreme Court intends to hear these cases in its next term (October 2019) and provide clarity on how these laws should be enacted across the country.

A study of 1,200 lesbian and bisexual woman found that 64 percent of them had experienced negative treatment at work

So, are these discrimination laws needed, and how are they viewed in other countries?

On this issue, the US is behind the UK in many regards. The UK already has the Equality Act of 2010, which makes it illegal for employers in the UK to discriminate against gay people and requires equal access to private and public services.

However, in the UK a study of 1,200 lesbian and bisexual woman found that 64 percent of them had experienced negative treatment at work in the form of sexual discrimination, inappropriate language, lack of opportunity or bullying. 73 percent said they were not completely out to colleagues, and 86 percent said there was a desperate need for more lesbian and bisexual women in senior roles to boost visibility and provide role models for other women.

“The results are startling and clearly show that in 2016 lesbian and gay women are still finding it hard to be themselves in the workplace and worse still, those who are out at work have had negative experiences including discrimination, bullying and reduced opportunities to progress compared to male counterparts,” said Sarah Garret, founder of the British LGBT Awards, the organisation behind the study.

A recent study from New York University found that LGBT+ indicators on CVs made female applicants 30 percent less likely to get a phone call from interested employers. Emma Mishel, a researcher on the study, explained, “When you look at my work history, it’s a lot of LGBT organizations, so it’s pretty obvious that I’m queer.”

Even when lesbians do get hired they are far more likely to face workplace harassment and bullying. In America, a study from UCLA’s Williams Institute found up to 41 percent of LGBT+ employees had been “verbally or physically abused or had their workplace vandalized.” While 1 in 6 had reported that their sexual orientation stood in the way of career advancement, or lead to them being let go.

The Williams Institute also found 7.6 percent of lesbian couples live below the poverty line, as opposed to the 5.7 percent of heterosexual couples.

These statistics are dependent on industry too. In the male-dominated tech industrya 2017 report by the Kapor Center for Social Impactfound that 24% of LGBT people had experienced public humiliation or embarrassment, and 64% of LGBT employees who were bullied said the experience contributed to their decision to leave.

Hayley Sudbury, an openly gay CEO in the tech industry, said the climate was so bad “I felt I had to leave…There were no visible gay women at that point that I could point to who were CEOs or in positions of power… I was in a serious same-sex relationship at the time, but struggled to present myself as a gay woman in the male-dominated workplaces I was working in.

“I remember once overhearing a conversation about a colleague who had been to a play that had homosexuality in it and he was grossed out by it,” she added. “It’s those conversations in the workplace that inform how comfortable people feel about coming out, whether it’s said by a man or woman.”

"There were no visible gay women at that point that I could point to who were CEOs or in positions of power."

Sudbury, along with other lesbian activists, call for clearer anti-discrimination laws. They would no doubt support the US Supreme Court strengthening the Civil Rights Act and including sexual orientation and gender identity.

But, as the UK has shown, these laws are only the beginning. Sudbury calls for greater mentoring opportunities in the workplace, especially between lesbian co-workers and employers. “It’s hugely important – connecting allies,” she said.

“Whether you’re coming out late after being in a straight relationship, which is an issue that’s come up on a few occasions, you’re navigating your family’s response, or you just want support with accepting yourself, it’s about finding the person who can actually help.”

Even with these laws, there is still a long way to go.

Keep up to date with the latest myGnews

LGBT professionals, LGBT Graduates, LGBT professional network, LGBT professional events, LGBT networking events, LGBT Recruitment, LGBT Friendly organisations, LGBT Friendly companies, LGBT jobs