The U.S. Commission on Civil Rights, an independent agency tasked with developing and enhancing federal civil rights laws, released a report on Wednesday outlining the "long, serious and pervasive history" of employment discrimination against lesbian, gay, bisexual and transgender Americans and called for federal legislation to address the issue.
Following the release, the Commission's chair, Catherine E. Lhamon, noted this new report, titled "Working for Inclusion," is the first investigation in the Commission's 60-year history to focus solely on LGBT civil rights.
The 154-page report, addressed to President Donald J. Trump, Vice President Mike Pence, Speaker of the House Paul Ryan and Senate Majority Leader Mitch McConnell, compiled the most recent research on LGBT employment discrimination.
The report concluded LGBT workers have faced a "history of official and unofficial employment discrimination by both federal, state, and local governments and private employers." The report also found federal data sources do not effectively capture rates of LGBT employment discrimination.
In addressing the pervasiveness of LGBT employment discrimination, the report cited the 2008 General Social Survey, which found 42 percent of lesbian, gay and bisexual employees "experienced at least one form of employment discrimination at some point in their lives." The report also cited findings from the National Center for Transgender Equality and the National Gay and Lesbian Task Force, which found 90 percent of transgender employees reported experiencing harassment, mistreatment or discrimination at work or taking actions (such as hiding their gender identity) to avoid being subjected to such behavior.
The report also concluded the "inconsistent and irreconcilable patchwork" of state laws and federal court decisions dealing with anti-LGBT workplace discrimination "render LGBT employees insufficiently protected from workplace discrimination."
Currently, for example, 28 states do not have laws prohibiting discrimination on the basis of sexual orientation, and 32 states do not protect against discrimination on the basis of gender identity or presentation. And while the 7th Circuit Court of Appeals recently found Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation, the U.S. District Court for the Southern District of Georgia ruled differently. There are also two government agencies — the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) — that are on opposite sides of whether sexual orientation and gender identity are covered by federal civil rights law.
A call to action
The report's primary call to action was directed to Congress.
"In order to effectively and consistently protect LGBT employees from workplace discrimination, Congress should immediately enact a federal law explicitly banning discrimination in the workplace based on sexual orientation and gender identity," Lhamon said in a statement accompanying the report.
Lhamon also issued two recommendations to federal agencies.
"Federal agencies should issue and — where relevant — reaffirm specific guidance for federal and private employers outlining protections for LGBT individuals in the workforce, including specifically enumerating protections for transgender persons," Lhamon stated. "Federal agencies should also collect workplace discrimination data about LGBT employees."
The eight member Commission, however, was not unanimous in their support of the report’s recommendations. Gail Heriot, an independent and a professor at University of San Diego School of Law, and Peter Kirsanow, a Republican attorney from Ohio, included rebuttals to many of the main arguments of the report.
The tipping point
The report conceded the historical obstacles federal legislation to address workplace discrimination against LGBT Americans has faced. Between 1974 and 2017, the report notes, "seven separate pieces of legislation to prohibit LGBT employment discrimination on the basis of actual or perceived sexual orientation or gender identity have been introduced in Congress."
The most recent attempt to introduce such legislation was in May of this year. Democrats reintroduced the Equality Act in both the House and Senate. The bill has not yet made it out of a congressional subcommittee.
When asked why she is optimistic about reaching a legislative solution now after 40 years of non-action from Congress, Lhamon said she thinks her Commission's report will be "the tipping point that will cause Congress to finally act" and "fill in a gap in our civil rights protections."