LGBT Rights in the Workplace

It is estimated that one in 10 people identify as lesbian, gay, bisexual, or transgendered (LGBT). According to the Washington, DC-based Human Rights Campaign Foundation, "there are 594,391 same-sex households in the country living in 99.3 percent of all counties in the United States." Therefore, legislation that affects LGBT rights will have an impact on virtually all workplaces. Here is a brief overview of some of the current laws, policies, and regulations found in Canada and the United States.

Protection from Harassment and Discrimination

Canada:

Most provinces and territories in Canada have a Human Rights Code that prohibits employment discrimination on the basis of sexual orientation. For example, under the Ontario Human Rights Code, "An employer is responsible for making sure the workplace is free from discrimination and harassment. The employer must take action if it knows or ought to have known about inappropriate behavior based on sexual orientation or same-sex partnership status."

However, although discrimination based on a person's sex is prohibited, there is little legislation that specifically protects transgendered individuals.

United States:

US federal law prohibits discrimination based on non-job-related factors such as race, sex, religion, and marital status. However, no federal law offers similar protections based on sexual orientation or gender identity. Therefore, anti-discrimination laws and policies (or the lack thereof) vary by state, local government, and employer.

As of May 2003, the Executive Branch of the US government, 308 Fortune 500 companies, 23 state governments, and 262 local governments had prohibited workplace discrimination based on sexual orientation. However, it is still legal to fire someone based on their sexual orientation in 34 states, and legal to fire an employee based on their gender identity in 44 states.

The Employment Non-Discrimination Act is a federal bill proposed in 2002 that would prohibit workplace discrimination based on sexual orientation. In its current form, the bill does not contain provisions that would protect transgendered and intersexed people.

Other proposed federal legislation that would give more rights to LGBT workers include:

Marriage Laws, Civil Unions, and Healthcare Benefits

The legal recognition of same-sex relationships has many repercussions for the workplace, such as spousal health benefits, taxation, and workers' compensation.

Canada:

Same-sex marriage was legalized in the province of Ontario in 2003, and legalized nationwide with the passage of the Civil Marriage Act in 2005. Since 2003, more than 10,000 marriage licenses have been issued to lesbian and gay couples.

Employers are required to provide the same benefits to the spouses and children of same-sex couples as opposite-sex couples. Even before the passage of the Civil Marriage Act, a 1999 Supreme Court ruling had extended most legal benefits associated with marriage to cohabiting same-sex couples.

United States:

Currently, Massachusetts is the only state that has legalized same-sex marriage. Civil unions (the legal union of a same-sex couple sanctioned by a civil authority) are recognized in Vermont and Connecticut, and give the couple spousal rights at the state level, but not at the federal level. Hawaii, California, Maine, New Jersey, and the District of Columbia recognize domestic partnerships ("Two individuals who are in a long-term committed relationship and are responsible for each other's financial and emotional well-being"), and grant some spousal-like benefits to such unmarried couples.

In 1996, the United States Congress passed the Defense of Marriage Act. This federal law defined marriage as "a legal union of one man and one woman," and also allowed states to deny spousal rights to same-sex couples who were married in a different state. For example, a lesbian couple who married in Massachusetts, then moved to live and work in Ohio, would not receive any legal recognition in their new home state.

Currently, 27 states have a law that restricts marriage to one man and one woman, and another 18 states also have a state constitutional amendment banning same-sex marriage. The Federal Marriage Amendment (FMA) is a proposed amendment to the United States Constitution which would define marriage exclusively as "a union of one man and one woman," and would prevent the extension of marriage-like rights to same-sex or opposite-sex unmarried couples. On June 7, 2006, this amendment failed to pass the Senate. However, it is likely that the bill will be debated again in the future.

What does all this mean for employers and workers? A marriage or civil union gives same-sex couples the same rights as opposite-sex married couples under state law, such as family leave benefits, discrimination based on marital status, medical care, and worker's compensation. However, they do not receive federal spousal benefits such as joint tax filing, and their legal union is unlikely to be recognized if they move to another state.

When it comes to health benefits, public state employers in Massachusetts, Connecticut, and Vermont are required to provide spousal benefits to gay and lesbian couples joined in a marriage or civil union. Private-sectors employers can choose to extend spousal and family coverage to same-sex couples, but are not required to do so by law. The Human Rights Campaign Foundation's database lists more than 9,000 employers who offer health benefits to the domestic partners of their employees.

In addition, health insurance received for a domestic partner counts as taxable income, even though insurance received for a married spouse does not. Employers who provide health benefits to unmarried partners are also taxed at a higher rate since their payroll taxes are based on their employees' taxable incomes. The Domestic Partner Health Benefits Equity Act and the Tax Equity for Health Plan Beneficiaries Act are proposed federal bills that aim to make the tax laws equal for married couples and domestic partners.

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Summary

In Canada, employees are legally protected from discrimination on the basis of sexual orientation, although there is very little legislation that specifically protects the rights of transgendered individuals. Same-sex couples who are married or in a common-law relationship are entitled to the same rights as opposite-sex married couples.

In the US, the amount of legal protection available to LGBT employees varies widely by state. For the most part, individual employers have the power to set their own policies regarding discrimination and same-sex partner benefits.

It's important to remember that what's on the law books does not always reflect the reality of the workplace. Additionally, there is often a delay between the passage of a new law and when it becomes widely known and implemented. Whether or not to come out at work remains a personal decision that carries both risks and benefits for employees. Many studies have shown that creating an inclusive workplace that respects the rights of all workers is sound business policy for employers.

All across North America, legislation regarding LGBT rights has undergone rapid change in recent years, and will likely continue to do so in the future.

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