Most Americans workers have no protection from being fired because they are lesbian, gay, bisexual or transgender (LGBT). This fact comes as a shock to many people. Around three-quarters of the public assumes that LGBT workers already have federal job protection. But they don’t. Legislation to address that problem has been kicking around Congress for forty years—it is now called the Employment Non-Discrimination Act, or ENDA—but Congress has not succeeded in passing it.
In 1974, when the first federal bill to protect LGBT workers was introduced, the landscape for equality was unfriendly—and things got worse before they got better. But they did get better. The military’s ‘don’t ask, don’t tell’ policy, enacted in 1993, was repealed in 2010, and gay people now serve openly in the armed forces. The Defense of Marriage Act was passed in 1996, but it was declared unconstitutional by the Supreme Court in 2013. Now nineteen states and the District of Columbia recognize full marriage equality, with more to come.
This progress has made the lack of employment protection for LGBT people nonsensical. We can hardly imagine that a gay man could serve his country in the military, only to get fired for being gay when he returns to his civilian job. But in most parts of the country, that is exactly what could happen. It would be irrational if a same-sex couple could finally get married, only to find that the company they work for can let them go when it finds out about the wedding. But that can still happen, too, even in some states that recognize equal marriage rights. The situation is unsustainable.
In the face of continued congressional inaction, President Obama has announced that he will issue an executive order to prohibit most federal contractors from discriminating against workers on the basis of sexual orientation or gender identity—protections that are already in place for race, gender and other categories. The president’s action is important, but it can only do so much. Congress must still enact ENDA.
But what should ENDA look like? The right answer to that question is simple: LGBT workers should have the same protection that other workers already enjoy under the 1964 Civil Rights Act—no more, no less. But something is getting in the way of that simple answer: the forty years of history that we have been dragging around with us like the wreckage of a derelict ship.
In 1974, when Representative Bella Abzug first introduced legislation to protect LGBT workers, her starting point was to extend the protections that already exist in the 1964 Civil Rights Act to LGBT people. The bill died in committee. Despite all the energy of the early gay rights movement, legislators were not yet ready to get behind such a clear and simple approach to LGBT equality. And so things got more complicated.
In an attempt to advance workplace protections, proposed legislation was loaded up with all kinds of appeasements. Employment benefits like insurance and retirement, which most couples take for granted, were carved out of the bill. Insulting language prohibiting any “quotas” of gay people was introduced. The early legislation had never explicitly included transgender people or protection for gender identity, and in 2007, those measures were debated—and deliberately excluded. The list goes on. When you are fighting for survival, as LGBT people were throughout this period, you come to accept many compromises that look shocking in hindsight. The different versions of ENDA reflected that grim reality.