New set of LGBT rules for US employers

This week's US Supreme Court decision barring workplace discrimination of gay or transgender employees is groundbreaking. By widening the definition of "sex" the court decided by a 6-3 majority that lesbian, gay, bisexual or transgender (LBGT) people are also protected under Title VII of the 1964 Civil Rights Act. That federal law bans discrimination in employment based on race, religion, national origin or sex.

Up until now many places had no such rules to safeguard LGBT employees. For those places that did, the new ruling replaced a patchwork of local and state ordinances to make sure everyone regardless of their sexual orientation or gender identity is protected on the job. Perhaps surprisingly, two conservative justices, Neil Gorsuch, who was appointed by Donald Trump, and Chief Justice John Roberts, sided with the four liberal justices.

Changing the playbook

"It means that — at least under the law, if not in every American's heart — we are all equal. Just as employers cannot legally discriminate against anyone purely on the basis of race, religion, ethnicity, disability, age, pregnancy or sex — now gender identity is added to, and arguably completes, that list," finance expert Andrew Tobias told DW.

And Tobias would know, besides having come up with bestselling books on investing and money, he wrote the autobiographical "The Best Little Boy in the World" in 1973. It would become a classic of gay writing, though fear and the business climate at the time kept the author from revealing his identity for years.

The new ruling cannot make up for those lost years or the millions of workers affected in the past. "As a practical matter, it may not change that many lives directly or immediately. But having grown up when people were routinely fired or blackmailed or arrested — or killed themselves — because they were gay, it's beyond wonderful to see a conservative-leaning Supreme Court affirm our equal rights under the law," said Tobias, who was also treasurer of the Democratic National Committee for nearly two decades.

Corporate culture wars

Like many social issues in the US, this one was decided by the courts and not by the legislature. Despite the court publishing a 172-page paper that includes the background, arguments, documentation and the final decision, some questions remain unanswered like dress codes, locker rooms and bathrooms for transgender employees. Some businesses are looking for answers, others are looking for religious loopholes.

Nearly five years ago the same court ruled that same-sex couples could get married everywhere in the US. Yet until now many of those places didn't protect those same people on the job. Previously 28 of the 50 states had no state-wide laws protecting LGBT workers. Only last week the Trump administration revealed the latest in a line of policies meant to limit the rights of transgender people.

Researchers from the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy at UCLA School of Law recently crunched the numbers. They found that around half of the estimated 8.1 million LGBT American workers over 16 "live in states without statutory protections against sexual orientation and gender identity discrimination in employment."

One size fits all?

In matters of hiring, firing, company benefits and promotion, many big US companies already have their own policies in place. It was a long uphill battle though. At first consumer companies made cold cost-benefit calculations after being pressured by customers.

Back in 2002 only 3% of Fortune 500 companies had gender identity protections in their nondiscrimination policies. Today, 91% do, according to the Corporate Equality Index 2020 published by the Human Rights Campaign (HRC) Foundation. Additionally, 65% now have transgender-inclusive health care coverage. That's a big increase from 0% in 2002.

For the Supreme Court case 206 firms put their name to a brief supporting the plaintiffs: companies like Airbnb, Bayer, Coca-Cola, Deutsche Bank, IBM, Morgan Stanley and the Walt Disney Company.

After the verdict was announced, Apple CEO Tim Cook, who is openly gay, wrote on Twitter, "LGBTQ people deserve equal treatment in the workplace and throughout society, and today's decision further underlines that federal law protects their right to fairness." Nonetheless, leaders in business world who are openly LGBT are rare.

Not at the head of the pack

Yet the majority of LGBT people don't work at Fortune 500 companies; they work at small businesses spread around the country. These smaller businesses will feel the impact of the new law, since they are often the source of reported discrimination or even hostility.

Often marginalized, LGBT employees generally work in more lower-paid jobs like the service, care or retail industries than non-LGBT workers. In the US around 15% work in restaurants or food services, 7.5% in hospitals, 7% in K-12 education, according to another HRC study. But at least they have jobs, the same report points out that one in 10 LGBT adults are unemployed and that was before the economic devastation of the COVID-19 pandemic.

Read more: Homosexuality is not a disease

No single law is ever a cure-all that solves every problem with the stroke of a pen. Still many hope that the new addition to federal employment guidelines will go a long way to take away some of the fear and make the daily lives of LGBT workers better. Younger generations will have it easier and fewer will have to stay in the closet.

So far 74 countries like Australia, Canada, France, Germany, Mexico, the Netherlands, Switzerland and the United Kingdom have laws against employee discrimination based on sexual orientation, according to a 2019 study by ILGA World, a Swiss-based advocacy group. The US is now number 75.

Andrew Tobias is hopeful more countries will follow. "But it should be noted that we are just following dozens and dozens of others," he concluded. There is a long way to go.