Long road, and more ahead

A fight against job dis­crim­i­na­tion looms as gays’ next hur­dle

Los Angeles Times - - FRONT PAGE - By Ti­mothy M. Phelps

WASHINGTON — Even as a les­bian in a con­ser­va­tive South­ern state, Ka­t­rina Mar­tir man­aged to thrive in cen­tral Ken­tucky. She mar­ried — in another state — is rais­ing a child with her wife and re­cently started her own con­sult­ing busi­ness.

But when the for­mer fourth-grade science teacher told her prin­ci­pal in 2010 that she planned to get preg­nant and raise a child with her part­ner, Mar­tir said she was promptly fired be­cause public school of­fi­cials feared a par­ent back­lash over a les­bian teacher. Mar­tir, 32, de­cided to sue for em­ploy­ment dis­crim­i­na­tion and went to see a lawyer. But she soon dis­cov­ered that there was noth­ing illegal, ei­ther in Ken­tucky or her county, about fir­ing some­one for be­ing gay.

“In most of Ken­tucky, they can do what­ever they want, I guess,” Mar­tir said. “I had three days to pack up.”

The Supreme Court on Fri­day

de­liv­ered a land­mark vic­tory for same-sex mar­riage, but gay rights ad­vo­cates were al­ready pre­par­ing for the next great bat­tle: the ex­pan­sion of fed­eral civil rights laws to pro­tect gays in the work­place and else­where.

“The prob­lem is, if gay mar­riage comes and gay cou­ples go to get mar­ried, a num­ber of them will get fired from their jobs for that,” said Bryan Gate­wood, a gay rights lawyer in Louisville. He said the Supreme Court vic­tory may trig­ger a back­lash from con­ser­va­tives in some states and cities. “You are go­ing to stir all these peo­ple up when [gays and les­bians] get mar­ried, so you’re go­ing to get more dis­crim­i­na­tion.”

Though the high court rul­ing may very well send a mes­sage through­out the coun­try that dis­crim­i­na­tion based on sex­ual ori­en­ta­tion is on shaky le­gal ground, cur­rent fed­eral civil rights laws do not ex­plic­itly ban such dis­crim­i­na­tion.

Only 22 states and the Dis­trict of Columbia have laws against em­ploy­ment dis­crim­i­na­tion based on sex­ual ori­en­ta­tion, leav­ing mil­lions of gays and les­bians with­out a clear right to rent an apart­ment, eat at a res­tau­rant or keep their jobs.

“This is the next fron­tier af­ter gay mar­riage,” Gate­wood said. Leg­is­la­tion to pro­vide com­pre­hen­sive fed­eral pro­tec­tions for gays and les­bians na­tion­wide is ex­pected to be in­tro­duced in the com­ing weeks by Rep. David Ci­cilline (D-R.I.) in the House and Sen. Jeff Merkley (D-Ore.) in the Se­nate.

With Repub­li­can ma­jori­ties in both cham­bers of Congress, the bills have lit­tle chance of pass­ing any­time soon. But gay rights groups say prospects for same-sex mar­riage were sim­i­larly dim when that move­ment started over two decades ago.

“This is about lay­ing the foun­da­tion for this leg­is­la­tion to even­tu­ally pass,” said Ian Thompson of the Amer­i­can Civil Lib­er­ties Union’s Washington of­fice. “A ma­jor- ity of the peo­ple sup­port this. It’s only a mat­ter of time be­fore that re­al­ity catches up to Congress.”

Sarah War­be­low, le­gal di­rec­tor for the Hu­man Rights Cam­paign in Washington, pre­dicted an LGBT nondis­crim­i­na­tion bill would be passed in the next three to six years. “There has been a very sig­nif­i­cant shift among Repub­li­cans about how they think about LGBT peo­ple and what it means to pro­vide core pro­tec­tions,” she said.

The ben­e­fits of such laws are demon­strated by a client of Gate­wood’s in Louisville, which passed an or­di­nance pro­tect­ing gays.

When Po­lice Sgt. Kile Nave was called “queer” by a su­per­vi­sor and then fired af­ter he protested to the chief of his sub­ur­ban Louisville depart­ment, he filed a law­suit and a com­plaint with the city’s hu­man rights com­mis­sion.

The Audubon Park Po­lice Depart­ment paid Nave dam­ages, and he now works hap­pily at another po­lice depart­ment nearby. But had Nave worked across the county line just 10 miles away, or in most of the rest of Ken­tucky, he would have had no es­tab­lished le­gal right to com­plain.

Op­po­nents of gay rights leg­is­la­tion are also ramp­ing up. They are fo­cus­ing a ri­val cam­paign around re­li­gious lib­er­ties, claim­ing that a man­date to serve gays and les­bians might some­times vi­o­late their faith.

Some states, like Mis­sis­sippi, have passed laws to pro­tect busi­nesses that refuse to serve gays and les­bians as a mat­ter of re­li­gious con­science.

The Al­liance De­fend­ing Free­dom, a re­li­gious le­gal ad­vo­cacy group based in Ari­zona, is ad­vis­ing churches, re­li­gious non­profit or­ga­ni­za­tions and schools on how to de­fend them­selves from dis­crim­i­na­tion law­suits. The or­ga­ni­za­tion is also rep­re­sent­ing a f lorist who re­fused to sell f low­ers for a same-sex wed­ding and a Tshirt printer who re­fused to make shirts for a gay pride pa­rade, ac­cord­ing to the group’s spokesman, Bob Trent.

Their cause was bol­stered last year when the Supreme Court ruled that cor­po­ra­tions with re­li­gious­minded own­ers have rights sim­i­lar to those of in­di­vid­u­als un­der a fed­eral re­li­gious free­dom law. The de­ci­sion ex­empted the Hobby Lobby crafts chain from a fed­eral re­quire­ment to of­fer cer­tain forms of birth con­trol to work­ers.

But some­times ef­forts to use re­li­gious claims to re­buff an­tidis­crim­i­na­tion laws have caused a back­lash. A bill ap­proved in In­di­ana in March that crit­ics said pro­vided a le­gal ba­sis for busi­nesses to refuse ser­vices to gay cus­tomers was amended in April to ex­plic­itly out­law such dis­crim­i­na­tion af­ter the state was hit with a flood of neg­a­tive na­tional at­ten­tion, in­clud­ing crit­i­cism from some ma­jor com­pa­nies based in the state.

Even with­out a fed­eral law ban­ning dis­crim­i­na­tion against gays and les­bians, there have been sev­eral ma­jor — if lit­tle-known — ad­vances in the area of em­ploy­ment in re­cent years. Since 2012, the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion has qui­etly rein­ter­preted the 1964 Civil Rights Act’s pro­hi­bi­tion on sex dis­crim­i­na­tion in the work­place to cover gay and trans­gen­der peo­ple.

Com­mis­sioner Chai Feld­blum said in an in­ter­view that the EEOC de­cided it was “a gen­der stereo­type to think that a man should marry a woman,” rul­ing in fa­vor of 223 LGBT peo­ple who claimed em­ploy­ment dis­crim­i­na­tion in the last two years. But that the­ory has not been fully tested in the courts, and a new fed­eral law could give much broader pro­tec­tions, she said.

Last year Pres­i­dent Obama signed an ex­ec­u­tive or­der pro­hibit­ing fed­eral con­trac­tors from dis­crim­i­nat­ing in hir­ing based on sex­ual ori­en­ta­tion, which ac­cord­ing to the Wil­liams In­sti­tute at UCLA cov­ers nearly a quar­ter of the en­tire civil­ian work­force.

All fed­eral em­ploy­ees are also pro­tected against dis­crim­i­na­tion based on sex­ual ori­en­ta­tion, un­der ex­ec­u­tive or­ders is­sued by sev­eral pres­i­dents.

The Pen­tagon an­nounced an an­tidis­crim­i­na­tion pol­icy in early June. To­gether they mean pro­tec­tion for more than 4 mil­lion ad­di­tional Amer­i­cans.

Com­bined with about 200 lo­cal an­tidis­crim­i­na­tion or­di­nances, about half of all gay and les­bian work­ers in the U.S. are be­lieved to be legally pro­tected against em­ploy­ment dis­crim­i­na­tion, though firm num­bers are not avail­able.

In ad­di­tion, nearly 90% of For­tune 500 pub­licly traded com­pa­nies vol­un­tar­ily pro­hibit dis­crim­i­na­tion on the ba­sis of sex­ual ori­en­ta­tion, ac­cord­ing to the Hu­man Rights Cam­paign.

But there are no laws pro­tect­ing a ma­jor­ity of gays and les­bians from other forms of dis­crim­i­na­tion, in­clud­ing hous­ing.

Be­cause there are few le­gal pro­tec­tions and the EEOC has only re­cently got­ten in­volved, it is dif­fi­cult to quan­tify the ex­tent of em­ploy­ment dis­crim­i­na­tion based on sex­ual ori­en­ta­tion. A 2013 U.S. Gov­ern­ment Ac­count­abil­ity Of­fice study found only be­tween 3% and 5% of em­ploy­ment dis­crim­i­na­tion com­plaints were based on sex­ual ori­en­ta­tion in states that of­fered pro­tec­tion against such bias.

A 2013 Pew Re­search Cen­ter poll found that 21% of gay work­ers sur­veyed said they had been treated un­fairly by an em­ployer based on their sex­ual ori­en­ta­tion. That com­pares with 46% of African Amer­i­cans who re­port they have been treated un­fairly by an em­ployer, ac­cord­ing to Pew.

In a 2013 study, the U.S. Depart­ment of Hous­ing and Ur­ban De­vel­op­ment found that land­lords re­sponded less fa­vor­ably to same-sex cou­ples com­pared with op­po­site-sex cou­ples in hous­ing in­quiries more than 15% of the time.

Rhode Is­land Rep. Ci­cilline, a for­mer mayor of Providence, is one of six openly gay mem­bers of Congress. He is con­fi­dent that his leg­is­la­tion will suc­ceed in time.

“I don’t think there is any ques­tion that we will live in a coun­try where dis­crim­i­na­tion [against gays] is pro­hib­ited,” said Ci­cilline in an in­ter­view. “The ques­tion is when.”

David McNew Getty Im­ages

IN WEST HOL­LY­WOOD, Robert Oliver, left, and Mark Heller celebrate the Supreme Court rul­ing up­hold­ing same-sex mar­riage.

Ti­mothy D. Easley As­so­ci­ated Press

TIM LOVE holds up the first same-sex mar­riage li­cense in Jef­fer­son County, Ky., as part­ner Larry Ysunza watches. “If gay mar­riage comes and gay cou­ples go to get mar­ried, a num­ber of them will get fired from their jobs for that,” said a Louisville gay rights lawyer.

KA­T­RINA MAR­TIR with her wife, Marianne McA­dam, left, and their daugh­ter. Mar­tir said she lost her job in 2010 be­cause of her sex­ual ori­en­ta­tion.

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