As the Supreme Court weighed arguments on same-sex marriage, Chief Justice John Roberts wondered aloud from the bench whether action on the issue by the court was necessary, because "politicians are falling all over themselves" to bring the legal rights of gay and lesbian Americans in line with those of everyone else.
If only this were true. In up to 34 states it's still legal for employers to deny jobs to citizens simply because they are lesbian, gay, bisexual or transgender. The lack of legal protections in two-thirds of the states for members of the LGBT community means that more people live in poverty and have a harder time making it simply because their rights aren't on an equal footing with other Americans. This is even more the case for LGBT women and people of color, where employment discrimination fuels an even broader economic crisis. But these hardships can be rolled away, and we need not wait for members of Congress to finish "falling all over themselves" to make it happen.
As a report released earlier this week by a coalition of non-discrimination organizations lays out, President Obama can take unilateral action right now to help more LGBT Americans secure jobs, improve living standards and live out their dreams. As Tico Almeida, president of Freedom to Work, said to me recently, "Hopefully 2013 will be the year that President Obama fulfills his written 2008 campaign promise and signs an employment non-discrimination executive order." A Freedom to Work online petition already has over a 185,000 signatures pressing the president to do just that. The case for doing so is persuasive and the numbers are staggering. Contrary to the aspirational images wealthy white men in popular media, such as the gay-millionaire couple on NBC's hit-comedy "The New Normal" or the upwardly mobile denizens of "Will & Grace," LGBT Americans are more likely to be poor and less educated than their peers, and come from communities that have been historically, economically marginalized. More than half of LGBT people in the U.S. are women, and black Americans, Asian Americans and Latinos make up a greater proportion of those identifying as LGBT than do whites.
According to a Gallup Survey last year, LGBT Americans are 30 percent more likely to have low-income jobs than the general population. Correspondingly, LGBT Americans are less likely to have high paying jobs than workers as a whole, and have a greater sense of dissatisfaction with their living standards as a result. Furthermore, lower levels of education, fed by the open hostility that many LGBT youth grapple with in school, creates yet another economic obstacle for the community. LGBT Americans have lower levels of education than the overall population. The bottom line is that employment non discrimination measures are required. Too many people neither can get nor keep good jobs without them.
According to a report by the Center for American Progress, as many as two out of five gay and lesbian workers "have experienced some form of discrimination on the job" with up to one out of five of these having been "fired for their sexual orientation." For transgender workers, these astounding numbers become astronomical. Nine out of 10 transgender employees have encountered "some form of harassment or mistreatment" at work with almost half of those who encountered difficulty on the job reporting extreme hardship, such as losing employment "due to gender-identity discrimination." Extreme bigotry has dire economic consequences.
In certain cities, as Queers for Economic Justice points out, the unemployment rate of the transgender community can be up to seven times higher than that of the muncipality as a whole. Though the cruel truth is that all of this is perfectly legal, the overwhelming majority of Americans don't think it should be. Public support for non-discrimination is 20 points higher than that for gay marriage, but you wouldn't know it from the way things are moving in Washington. A bill to end employment discrimination in all 50 states has been introduced in almost every Congress for the past two decades, but has never passed.
Last year the Employment Non-Discrimination Act (ENDA) received a hearing in the Senate's Health, Education, Labor and Pensions Committee but not a vote--not in the committee, the Senate itself nor the full Congress. For Republicans the problem is that ENDA would require greater federal monitoring and enforcement to ensure compliance. Given the Congress' desire through sequestration to roll back the government, including in life and death areas ranging from cancer treatment, to air traffic control, to protections for those facing capital punishment, there is little appetite on Capitol Hill for greater federal involvement in anything. As for the Democratic-controlled Senate, Almeida says, "too many believe that you can only have one LGBT bill per year. Last session it was the repeal of 'don't ask, don't tell.' " He adds a hope that 2013 may be ENDA's year in the Senate declaring, "We need to help people right now."
Stalled efforts in Congress have frozen movement in the federal courts as well, because without a national ENDA law there is no legal mechanism that an individual can use to file suit. Almeida sums up the problem this way, "There are dramatic cases where someone faces discrimination, calls a lawyer and the lawyer says, 'Federal law doesn't protect you, state law doesn't protect, so there's nothing I can do." But there is one branch that can act immediately to expand protections for gay workers, and that's the executive.
With a stroke of a pen and without congressional approval, the president could issue an executive order to extend employment protections for up to 16 million workers. As Center for American Progress blogger Hillary Anderson points out, "this executive order would cover 20 percent of the American civilian workforce." Why would it have such a big impact? Because in the 29 states without individual ENDAs, the federal government does close to $300 billion in business. Through the presidency, Obama has the power to mandate employment non-discrimination for the LGBT employees of those companies. An executive order won't cover all LGBT workers. Only an act of Congress can do that. But given the economic distress of the LGBT community caused by bigotry and joblessness, something perhaps would be better than nothing.