Academic

We need Federal Law to Protect Gays and Lesbians from Discrimination

By University of Houston Law Center

With the Democrats retaking the House and Senate, the gay and lesbian community, like many interest groups, is hoping that issues important to it will be addressed. Though gay marriage seems to be the issue “du jour” for our community; in reality we should be paying attention to protection from employment discrimination. . .

In his address to the International Gay and Lesbian Leadership Conference last week in Houston, Congressman Barney Frank emphasized this very point in mapping out the Democratic legislative agenda. He hoped that the Democrats could successfully pass the Employment Non-Discrimination Act (ENDA) in both the House and Senate.

Many people forget that in large areas of our country, gays and lesbians can be fired from jobs simply because of their sexual orientation. And though 14 states and most large cities where openly gay persons live (Houston is a notable exception) ostensibly protect the GLBT community from employment discrimination, these local solutions themselves are not sufficient. In 1998, my colleague Marieka Klawitter, a Professor at the University of Washington, and I, did the first statistical study analyzing the effects of non-discrimination clauses on the incomes of census registered gay and lesbian couples. [See Klawitter and Flatt, The Effects of State and Local Anti-Discrimination Policies on Incomes of Same-Sex Couples, 17 Journal of Policy Analysis and Management, No. 4, 658 (1998).] Surprisingly, it appeared that these local and state laws had no statistical impact on the earnings of these census identified couples. This may seem counter to the idea that such laws will help gay and lesbian persons lead better lives. Indeed, much to my dismay, the religious right routinely cites this study for the proposition that non-discrimination laws are un-necessary. But if one doesn’t take pieces of the study out of context, the implication is far different.

Professor Klawitter and I postulated that the real problem is that local laws are ineffective because states and localities do not have the administrative infrastructure and, in the case of cities, penalty power, to effectively enforce the laws. It is one thing to tell the populace that they should not discriminate, and quite another to actually punish them for doing so. Because the federal government is whom we look to for civil rights enforcement, states and localities simply don’t have the resources, or in the case of the cities, the legal power to do much. Despite trying to craft a strong ordinance to protect its citizens from discrimination based on sexual orientation, the City of Atlanta was limited by state law to fine a small amount for a violation and had no personnel to undertake investigations. And even that small penalty provision was challenged by the Druid Hills Country Club.

A similar dynamic was at work in the case of private discrimination based on race. Before the passage of the Civil Rights Laws of 1964, 25 states had laws prohibiting private racial discrimination, yet significant economic gains did not occur for African-Americans until after the prohibition was added to federal law.

The ability to live openly and not lose one’s job is important for anyone, and the GLBT community must strive to accomplish this effectively. 80% of the American public supports these non-discriminatory principles, and the Senate came within one vote of passage several years ago. It is time to try again.

Full post as published by University of Houston Law Center Faculty Blog on November 21, 2006 (boomark / email).