There is, of course, no single experience of being LGBTQ+ at work. But the levels and types of discrimination queer people have faced at work have changed over time, often depending on the industry and which state they happened to be in.
Title IV of the 1964 Civil Rights Act is often thought of as a turning point in the battle against workplace discrimination. But Title IV didn’t really make a huge difference in the lives of many LGBTQ+ people at work because, while it bars discrimination based on “race, color, religion, sex, or national origin,” it doesn’t explicitly include sexual orientation. The Equal Employment Opportunity Commission (EEOC), began to interpret Title IV wording of “sex discrimination,” to encompass gender identity and sexual orientation only in the last several years. That means that for decades, it was perfectly legal to fire someone for being LBGTQ+. Over the years, some states enacted their own laws that offered different levels of protection, some banning discrimination due to sexual orientation or gender identity (or both). But without an explicit national law, it was a patchwork system that left employees in many states with no protection.
In 1994 the Employment Non-Discrimination Act was introduced; it would have amended Title VII so that it specifically banned workplace discrimination based on sexual orientation and gender identity. The Act was introduced in nearly every session of Congress from 1994 to 2010, but never passed. The ’90s also saw another major set back to LGBTQ workplace rights, the enactment of “Don’t ask, Don’t tell,” the military policy instituted by President Bill Clinton in 1993 that barred LGBTQ people from serving openly. President Barack Obama ended the policy in 2011. The passage of the Marriage Equality Act in 2015 allowed for some more legal protections for married people, including the inclusion of same sex spouses on employee-sponsored health insurance.
But things got worse for LGBTQ employees under the Trump administration. The Trump Justice Department said that previous, more inclusive rulings by the EEOC were legally meritless, meaning that discrimination against queer employees was still perfectly legal in many states. Trump’s time in office was particularly awful for LGBTQ in the military as well, with his ban against transgender people serving.
It wasn’t until 2019 that the U.S. House of Representatives passed the Equality Act, which would expand broad civil rights protections for queer people, including in the workplace. But the bill didn’t make it past the Republican-controlled Senate. The bill was reintroduced in February of this year, and has passed the House again. President Joe Biden has said he would sign it if it reaches his desk. Meanwhile there was a big victory for LGBTQ employees in the summer of 2020, when the Supreme Court ruled that the meaning of Title IV does bar employment-based discrimination based on sexual orientation.
But despite this ruling by the Supreme Court, the Equality Act is still important, as Title IV doesn’t protect against other forms of discrimination in areas like housing and medical access. And despite having a new president with more inclusive ideas about LGBTQ+ people, 2021 has been a record-breaking year for anti-trans legislation: 33 states have introduced more than 100 bills that aim to curb the rights of transgender people across the country, affecting everything from school sports to medical access.
All of that is just the letter of the law, or, rather, an interpretation of the law. It doesn’t give a sense of what the lived experience of being queer at work is like, the daily calculations around identity, fear, and authenticity.
So on this week’s episode of The New Way We Work, I spoke to LaFawn Davis, group vice president of Environmental, Social & Governance at Indeed. Davis is a queer Black woman who has worked in the DE&I space for more than 15 years. She says that often LGBTQ people often have to code switch in company cultures that aren’t welcoming.
“It takes so much energy, so much emotional strength to [code switch]. When you have to be someone else, or present as someone else, it really does impact your mental health. And now we’re in a space where it’s not just like walking into an office and do I come out, or do I not come out. A lot of us are working from home, and that presents a different issue because you could be out at work and not out at home,” she says.
Building an LGBTQ-friendly workplace goes way beyond equal employment law, or blanket statements of support and rainbow branding during Pride Month. Davis walked through how companies can make changes both big (covering gender reassignment surgery, offering the same level of parental leave for all employees, not just birth moms), to small (not making people select one gender or race on forms, including preferred pronouns in communication) that work to build a truly inclusive culture.
The benefits of doing so will be seen in bottom-line results and long-term, happy, productive employees. As Davis says, “If you just allow employees to be who they are, they will go hard for you. They will be loyal to your company. They will give you even more exponential effort. They perform better, because you have now freed up space and capacity for them to focus on the work that they need to do, as opposed to having to hide themselves or fight for themselves.”