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Policies Against Employment Discrimination and Harassment Based on Sexual Orientation and Sexual Identity Nonexistent or Weak In Many Areas of the U.S.

There are federal laws protecting workers from race, sex, religion, national origin, and disability discrimination, but there is no corresponding protection for Lesbian, Gay, Bisexual and Trangendered workers. This is despite several unsuccessful attempts by members of Congress to pass the Employment Non-Discrimination Act (ENDA), which would extend general Title VII-type protections to all U.S. workers except those employed by small businesses, religious organizations, or the military. However, the current patchwork of laws prohibiting these forms of discrimination consist of protections for federal employees, residents of about twenty U.S. states, including New York, along with residents of various counties and municipalities.

Many LGBT American workers–those who fall outside of this patchwork of laws and ordinances–have no protection at all against discrimination in the workplace. Of those workers who have legal protection, some are protected by state laws prohibiting sexual identity and orientation discrimination, others by state laws prohibiting only sexual orientation discrimination, others by state laws prohibiting such discrimination only for public employees, and still others only by city or county ordinances. These city ordinances cover the populations of many large cities, and thus seem to offer protection to a large portion of the U.S. population. But it is important to measure this protection by quality as well as quantity; although these local ordinances do apply to large swaths of the population, they are generally so feeble they are insulting. Two city ordinances are typical here: Columbus, Ohio and Dallas, Texas.

On December 15, 2008, the City of Columbus, OH, with a population of about 890,000, added the categories of “gender identity or expression” and “sexual orientation” to its list of prohibited forms of discrimination by employers. Gender identity or expression” is defined in the statute as “having or being perceived as having gender-related identity, appearance, expression, or behavior, whether or not that identity, appearance, expression, or behavior is different from that traditionally associated with the person’s actual or perceived sex.” The ordinance goes on to specify that “a violation of the ordinance is a misdemeanor of the first degree, which could result in imprisonment of up to 180 days and/or imposition of fines up to $1,000.”

Dallas, Texas, with a population of about 1.24 million, also enacted a city ordinance banning only sexual orientation discrimination in October 2002. In the midst of a large state, almost none of which offers any kind of protection for LGBT workers, Dallas has made an effort, but the effort failed when you consider the relief available to the employee: zero. The fines specified by the ordinance are “not less than $200 or more than $500 (Ord. 24927), and the fine is paid by the employer to the City of Dallas.

Thus, one glaring weakness of these ordinances is that the fines they prescribe are too small to deter almost any organization from engaging in these forms of discrimination–arguably so small as to be pointless, or even insulting, particularly since any penalties paid by employers for violations of these ordinances go to the city or state rather than the victims. Worse, these ordinances do not give anyone the right to sue their employer to recover damages. The person who is fired simply for being gay, for example, can recover nothing; the most s/he can hope to do is cause the employer to pay a small fine to the City.

Fortunately, New York and many other states and cities do have adequate protection for employees who face discrimination based on sexual orientation. If you believe your employer has discriminated against you based upon your sexual orientation or gender identity, please contact The Harman Firm, LLP.

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