When Kylar Broadus, a transgender man, announced his transition to coworkers, his employer responded by monitoring him and banning him from talking to certain people even though, he says, his performance did not change. He says he was harassed every day. Six months later, he was fired.
Broadus likely had nowhere to turn to seek justice for what happened to him. While most states have followed the federal Civil Rights Act and prohibited discrimination based on sex and race, the majority have not explicitly protected people based on their gender identity or sexual orientation. A mere 20 states have laws protecting LGBTQ people from workplace discrimination. Two more states protect them based on sexual orientation but not gender identity. Eleven have protections only for state workers; 17 offer no protections at all.
Broadus was unemployed for a year after losing his job. He suffered post-traumatic stress disorder from the harassment he suffered. He’s still dealing with the financial consequences, struggling to pay off his student loans.
He shared this story in a 2015 testimony before the United States Commission on Civil Rights, an independent and bipartisan federal agency that has examined discrimination against gay, bisexual, and transgender workers. “We are people and we are human beings and we deserve the right to make a living,” he told the commission.
The commission listened to him. In a report sent Wednesday to President Donald Trump, Vice President Mike Pence, Senate Majority Leader Mitch McConnell (R-KY), and House Speaker Paul Ryan (R-WI), the U.S. Commission on Civil Rights called on Congress to enact a federal ban on LGBTQ employment discrimination.
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Given what the report calls an “inconsistent and irreconcilable patchwork of state laws” that protect gay, bisexual, and transgender workers from discrimination, as well as court cases that have left gender identity and sexual orientation out of federal discrimination laws, a law passed by Congress is its main objective.
“Our primary recommendation is directed to Congress,” an opening letter from the commission’s chair, Catherine E. Lhamon, reads. “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.”
“The U.S. Commission on Civil Rights majority concluded that millions of Americans currently live in uncertainty and fear of losing their jobs simply because of who they are,” Lhamon said on a call with the media on Wednesday. “Congress must act to help them.”
The report calls on federal agencies—including the Department of Justice, Department of Labor, the Equal Employment Opportunity Commission, and the Office of Personnel Management—to issue guidance clarifying that gay and transgender workers are protected from discrimination under their own guidelines, as well as to collect data on what gay and transgender employees face at work, such as through Census surveys and the Bureau of Labor Statistics.
The report, Lhamon’s letter notes, was shaped by “careful research and investigation.” That includes testimonies from both those in favor of anti-discrimination protections and those against, as well as research and surveys. But in the end, a majority of the commission’s members voted in favor of findings that gay and transgender workers have faced “a long, serious, and pervasive history” of employment discrimination.
The report cites surveys and research that indicate there are an estimated 10 million U.S. adults who identify as LGBTQ, including 8 million who are employed, although those figures are likely undercounted. Still, it notes that gay, bisexual, and transgender people make up a “significant” share of the country’s workforce, though many may not be publicly out at work.
Despite the size of the LGBTQ workforce, they face discrimination at nearly every turn. It starts when they apply for a job: One study cited in the report found that resumes indicating an applicant was LGBTQ got about 30 percent fewer callbacks.
The experience frequently follows them throughout their careers. Studies have found that anywhere from about a quarter to nearly half of LGBTQ people have faced discrimination at work based on their orientation or identity. Between 10 and 28 percent have gotten negative evaluations or were passed over for a promotion; more than four in ten have experienced verbal or physical abuse at work. Seven percent of gay or bisexual people have lost jobs because of their orientation.
Transgender people are particularly vulnerable to discrimination and abuse. Nine in ten report experiencing harassment or mistreatment in the workplace, including being forced to use a bathroom that didn’t match their identity or being told to present in the wrong gender to keep a job. Forty-four percent have been passed over for a job, while more than 20 percent have been denied a promotion and over a quarter were fired. Fifteen percent of respondents to a recent survey of transgender people in the United States had been harassed, attacked, and/or sexually assaulted at work in the past year.
This discrimination ensures LGBTQ people are worse off than their straight and cisgender counterparts. Gay men earn, on average, somewhere between 10 and 32 percent less than their heterosexual counterparts, while gay couples are more likely to live in poverty than straight ones. Transgender people are more than twice as likely to live in poverty as cisgender people. Transgender people are also three times as likely to be unemployed, while transgender people of color are four times as likely to be out of work. Many transgender people feel pressure to hide their identities to keep their jobs: More than three-quarters of those who are employed report having hid their gender identity, delayed a transition, or quit their jobs out of fear of experiencing repercussions for presenting who they are at work.
The report notes that “the reality [is] that many LGBT Americans are forced to deal with prejudice and discrimination every day in the workplace.”
And yet most employers who discriminate likely face few consequences, given that the majority of states don’t protect LGBTQ people from employment discrimination. The Civil Rights Act bans discrimination based on sex, but there is an ongoing battle over whether that includes sexual orientation and gender identity. The Department of Justice signaled in July that the act doesn’t include sexual orientation, in an unusual move as part of an amicus brief at the Second Circuit Court of Appeals. Circuit courts remain divided over this question, even as the Equal Employment Opportunity Commission, the federal discrimination watchdog, has issued guidance saying that it considers such discrimination to be illegal under the Civil Rights Act.
So while lesbian, gay, bisexual, and transgender people can now legally marry who they love after the U.S. Supreme Court’s ruling in the Obergefell v. Hodges case in 2015, they may not be able to safely talk about their partners at work. As Selisse Berry, founder of Out and Equal Workplace Advocates, put it in testimony to the commission, “Today, it’s possible for a lesbian couple to get legally married on Saturday and then be fired on Monday for putting a wedding picture on their desk.”
The report notes that federal legislation to ban employment discrimination against gay, bisexual, and transgender workers has been introduced in Congress seven times over the past 40 years, but it has yet to actually pass. The most recent version, the 2017 Equality Act introduced in May, includes protections based on both sexual orientation and gender identity with no religious exemptions. But despite 241 Democratic sponsors in both the U.S. House and Senate, nothing has happened to it since its introduction and no Republicans have gotten on board.
Chances for progress may not seem bright in the current environment. After filing its friend-of-the-court brief in July, the Department of Justice rescinded in October an Obama-era directive that had clarified transgender people were protected under the law.
But Lhamon thinks the commission’s report, and its directive aimed at Congress, can push the issue over the finish line. “The commission is proud to have influenced all of the federal civil rights laws that have been enacted in our 60-year history,” she said on the press call. “We hope this report will be the tipping point that will cause Congress to finally enact the protections that would fill the gap today.”
CORRECTION: A previous version of this article incorrectly noted the age of the U.S. Commission on Civil Rights; it is in its 60th year.