Wednesday marked the defeat of Arizona's "Beau Crow" law -- a modern-day version of Jim Crow that would have given state endorsement to discrimination against gay and lesbian people. Yet LGBT discrimination by private businesses remains lawful, in both Arizona and most states. Unlike race, sex, disability, veteran status, and religion, sexual orientation is not protected under federal law or the law of 29 states. That means that if a business wants to fire you because you are gay, lesbian or in a same-sex marriage, you've got no recourse under the law.
That's why we need national legislation barring discrimination on the basis of sexual orientation and gender identity. It's time for Congress to pass the Employment Non-Discrimination Act, or ENDA.
This year will be the twentieth anniversary of the first proposal to revise federal anti-discrimination law to protect gays and lesbians in the same way federal law protects racial groups and the different sexes from discrimination in hiring and promotion. Introduced in every Congress since 1994, ENDA has never been able to make it through both houses of Congress. The Arizona controversy ought to be the inspiration for us to finally act decisively against LGBT discrimination.
Although easily lost in the political uproar over the proposed laws in Arizona, Kansas, Georgia and elsewhere, the truth is that most businesses don't need Beau Crow laws to give them legal cover for LGBT discrimination. The law in most states allows businesses to choose to fire or refuse to hire anyone for any reason -- so long as the refusal isn't on the basis of a "protected" category, like race or sex. Arizona businesses are legally allowed to discriminate against gay and lesbian people because sexual orientation is not a protected category under state law. While some Arizona cities, like Phoenix and Tucson, have passed their own municipal laws protecting sexual orientation in some way, such patchwork protections don't cover everyone.
Studies show that discrimination against gay, lesbian, and especially transgender people continues to plague the workplace. According to research collected or compiled by the Williams Institute at UCLA (where I teach and serve on the Faculty Advisory Committee of the Institute), gay and lesbian people consistently report having experienced or witnessed LGBT discrimination in employment. In 2008, research showed that 37 percent of gay and lesbian people experienced workplace harassment in the previous five years, and 12 percent had lost a job because of their sexual orientation. Transgender people have it worse: 90 percent claim to have suffered discrimination, been mistreated, or had to take special actions to avoid being discriminated against. Forty-seven percent of transgender people experienced discrimination in hiring or promotion.
It's hard these days to imagine Congress getting its act together to pass legislation on just about any issue of significance. Yet both sides of the aisle should now see clearly that, whatever one's views on same-sex marriage, Americans don't believe people should face discrimination on the basis of an irrelevant characteristic like sexual orientation. If the business outcry over Arizona's proposed law, which included noteworthy leadership by NFL, Delta Airlines, Marriott, and Apple, was not enough, polls show three in four people in favor of protecting LGBT people from discrimination. This support cuts across political party lines, with 81 percent of Democrats and 66 percent of Republicans endorsing nondiscrimination laws.
Even without hateful Beau Crow laws, businesses in most parts of the country can still refuse to hire someone because of that person's private personal sexual choices. It's time to ENDA discrimination, for once and for all.
[An earlier version of this post incorrectly stated that 39 states allow LGBT discrimination. The actual number is 29. Our apologies for the counting error.]