Introduction
Despite the promotion of democratic principles, equality, and fair treatment of all people, discrimination is a widespread phenomenon in the world and the United States. One manifestation of this injustice is discrimination in the workplace based on sex, race, gender, religion, disability, or sexual orientation. At the same time, the US Constitution, the Bill of Rights, and a number of laws prohibit this behavior and protect all people from discrimination at work. Moreover, the interpretation of laws is gradually expanding in response to the requirements of the public and current social trends. In 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 covered gay and transgender employees (Janisch, 2020). This decision is a milestone for the United States, which seeks equality for all state residents, since not all US states allow same-sex marriage yet. However, legal proceedings show that despite laws against discrimination at work, situations of unfair treatment still arise. For this reason, this paper will study the issue of discrimination in the workplace, particularly against the LQBTQ+ community, to show the impact and significance of this problem in society.
Background
Anti-discrimination laws in the workplace have been adopted in the US over five decades ago and are constantly updated. However, discrimination cases are still quite common as many categories of people with “differences” face unfair treatment. Most of the categories are reflected in national and state laws, such as anti-discrimination acts based on age, race, disability, pregnancy, and gender. In 2020, the Supreme Court also broadened the Title VII of the Civil Rights Act of 1964 to define that “sex” also refers to sexual orientation, thus including gay and transgender people in the law (Janisch, 2020). However, most US states do not have local laws that protect minorities from workplace discrimination. For example, in 2018, only 25 states have separate laws prohibiting discrimination based on sexual orientation or gender identity or considered anti-discrimination laws regarding sex as equal to them (Movement Advancement Project and National LGBTQ Workers Center, 2018). At the same time, although federal laws have a higher jurisdiction than state ones, these indicators most often demonstrate the attitude of local authorities and employers to the problem.
Furthermore, when studying the concept of discrimination, it should be noted that there are varieties of it that often impede fair treatment and the filing of claims. The first type is “direct” discrimination, which is expressed in dismissal, un-hiring, or refusal to promote people because of their differences. These cases are easier to prove in court as lawyers usually can trace the link between discriminatory reasons for a decision and the consequences. In addition, there is also subtle discrimination, which is expressed in non-obvious interpersonal intentional insults of people based on their distinctive characteristics. For example, one colleague may not be invited to his or her team’s party, or a person with a disability may not be allowed to work directly with clients. This type of discrimination is just as harmful and toxic for people, but it is more difficult to prove due to the non-obviousness of the manifestation. For example, employees may justify that they did not invite a colleague because they are not friends, and a boss may say that the person with a disability is the best at the warehouse.
Thus, in any case, discrimination creates a work environment that affects employees’ well-being and most often harms their mental health and development opportunities. This issue is especially relevant for representatives of LGBTQ +, since the law protecting their rights in the workplace is new. This feature is also reflected in many companies’ organizational culture because the adoption of amendments usually cannot dramatically change people’s opinions. In other words, even if LGBTQ + people do not formally face discrimination, a homophobic organizational culture can create conditions for subtle discrimination and force a person to quit. In addition, discrimination against gays and transgender people has its characteristics; for example, a person may hide their orientation due to fear of unfair treatment, which harms their mental health. This characteristic also discourages positive change, since by hiding their orientation, people often allow discrimination to exist, since there is no direct reason for employees to oppose it. However, these characteristics and assumptions require more careful analysis, as well as the consequences of the amendment and discrimination on the life and work of LGBTQ + people. Therefore, these issues will be explored in the next section.
Analysis
Definition of Discrimination in the Workplace
Workplace discrimination can take on a variety of forms that are defined and prohibited by law. In general, discrimination is defined as differential or less favored attitudes towards people based on their race, age, color, national origin, religion, sex, gender identity, sexual orientation, pregnancy, marital and parental status, disability, or genetic information (“What are discrimination,” n.d.). However, certain behaviors are also considered discriminatory. First, harassment is discriminatory behavior that manifests itself in creating a work environment that a person finds intimidating, offensive, or hostile (“What are discrimination,” n.d.). If such enduring behavior is necessary as a condition for the continuation of a person’s work, this is also a sign of harassment. Another discriminatory behavior is harassing conduct, which is expressed in verbal or physical threats, ridicule, insults, or comments against persons who have legally protected differences (“What are discrimination,” n.d.). This definition also applies to people who reported discrimination, tried to protect victims of discrimination, or gave evidence in their favor (“What are discrimination,” n.d.). Thus, the anti-discrimination rule also applies to people who usually do not belong to protected groups, such as a white American men, but who oppose discrimination.
Retaliation is another type of discriminatory behavior. Retaliation means preventing a person from taking action to report discriminatory or criminal behavior of others, including participating in legal proceedings (“What are discrimination,” n.d.). In addition, denial of a reasonable workplace change due to religion or disability, as well as asking inappropriate questions or disclosing genetic information, are also considered discriminatory (“What is employment discrimination?” n.d.). All of these rules are defined by laws and allow people to receive compensation for discrimination by their employer on a legal basis.
Prevalence of Discrimination in the Workplace
Workplace discrimination affects different groups of people due to employer bias and prejudices. However, since prejudice and stereotypes are more frequent and noticeable for some diverse groups, the frequency of discrimination cases in the workplace also differs. According to statistics, the Equal Employment Opportunity Commission (EEOC) in 2020, employed people most often reported discrimination based on race (32.7%), gender (31.7%), disability (36.1%), and age (21%), while cases of discrimination based on national origin, religion and color did not exceed 5-10% (Charge statistics, n.d). Statistics on sexual orientation and gender identity are not even singled out as a separate group. However, according to the Movement Advancement Project (2018), 25% of LGBTQ + people reported discrimination in the workplace. Thus, this minority also often faces discrimination that hinders their regular and comfortable work.
Moreover, despite the adoption of laws and the promotion of equality in the media, statistics have hardly improved over the past ten years, and in some cases, have even worsened. For example, in 2010, 2,780 cases of discrimination due to color were reported, and in 2020 this figure rose to 3,562 (Charge statistics, n.d). The proportionality of discrimination cases has also changed, since while people in 2010 were 2-3% more likely to report unfair treatment due to race, gender and religion, in 2020, there are 10% more cases of discrimination based on age and disability (Charge statistics, n.d). Thus, these statistics demonstrate that the existence of legislation is often not enough to combat discrimination, and active social policy is a necessity to reduce it. However, the adoption of anti-discrimination laws is a sign of recognition of the problem at the state level that allows people to fight for their rights openly.
Amendment the Title VII of the Civil Rights Act of 1964
One of the most recent anti-discrimination laws was passed just last year to cover another category of minorities who often face prejudice. The Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on specific characteristics: race, color, national origin, sex, and religion. Until last year, states, depending on their attitude towards sexual minorities, interpreted this law in different ways, considering “sex” only as a difference between men and women, or including in it the interpretation of sexual orientation and gender identity (Movement Advancement Project and National LGBTQ Workers Center, 2018). In other words, LGBTQ + people did not have legal protection against discrimination in the workplace in some states 25 states.
However, in 2020, the amendment was passed at the federal level, which protects all gay, lesbian, and transgender people at the national level from discrimination in the workplace. This law includes both the prohibition of dismissal, un-hiring, or refusal of promotion based on sexual orientation, as well as everyday discrimination in self-expression. For example, management cannot fire a transgender person for refusing to wear a uniform that matches his or her sex but does not match their gender identity. Thus, this amendment is an important step in the fight against LGBTQ + discrimination in the workplace as it recognizes the problem and allows its legal solution in the courts of all states.
Need for the Amendment and Consequences of Discrimination of LGBTQ+ People in Workplace
Anti-discrimination laws protect the majority of the population from unfair treatment and officially declare their rights. Until 2020, many LGBTQ + people could fail in court as there was no formal law prohibiting discrimination at the national level. According to research by Flage (2019), people who openly declare their homosexuality faced the same level of discrimination in employment as ethnic minorities in OECD countries. At the same time, discrimination against lesbians was significantly lower than that of gays for low-paid jobs, which also shows the manifestation of unequal gender relations (Hersch & Bullock, 2019). In addition, there is such a gender difference between LGBTQ + and heterosexual workers. For example, Hersch and Bullock (2019) cite studies by other scholars that demonstrate that homosexual men earn significantly less than heterosexual men; however, gay women earn more than gay men and heterosexual women. Consequently, there is inequality between homosexual people, transgender people, and heterosexual people and between representatives of different genders.
Furthermore, LGBTQ + people also often face layoffs due to their orientation or gender expression. 27% of LGBTQ + people in 2016-2017 reported being fired, not hired, or denied promotion (Movement Advancement Project and National LGBTQ Workers Center). In addition, discrimination also exists in social benefits, since only 1 in 5 companies in the US offers paid family care for LGBTQ + people. This statement is also confirmed by Huffman et al. (2020) because they note that since there is no compulsory paid family leave in the United States, homosexual couples are more likely to face issues. At the time, an interesting fact is that biological lesbian mothers are more likely to receive parental leave care than non-biological mothers (Huffman et al., 2020). Since homosexual couples are more often adopt children, this fact also indicates one of the manifestations of discrimination. Consequently, all these violations and manifestations of inequality show that the amendment was necessary to consolidate people’s rights of different sexual orientations and gender identities and stimulate the improvement of conditions among employers with punitive measures.
However, the amendment’s adoption does not resolve the issue of discrimination against people of different sexual orientations and gender identity, since there is a problem of subtle discrimination and a negative organizational environment. Subtle discrimination usually manifests itself in comments, jokes, or actions that do not have such a significant and noticeable effect on the victim of discrimination. In other words, being fired for sexual orientation is a more obvious offense than commenting on being too masculine or feminine in an outfit that just sounds like “just an opinion”. Other manifestations of subtle discrimination can include isolating a team member from team communication or activities, assigning more difficult or meaningless tasks, joking about appearance or orientation, and unwillingness to talk about certain topics. These manifestations of unequal treatment create an unwelcome environment and make LGBTQ + people feel alienated and emotionally stressed.
The prevalence of such discriminatory behavior is also confirmed by research and statistics. For example, 18% of LGBTQ + workers said they heard their sexually inappropriate comments because their colleagues thought that different sexual orientations and identities made them appropriate (Fidas & Cooper, 2018). In addition, 53% of LGBTQ + workers have heard jokes about gay, lesbian, bisexual, or transgender people in the workplace (Fidas & Cooper, 2018). While these jokes can be unpleasant and offensive, just like comments about intimate relationships of heterosexual couples, sexualizing LGBTQ + people makes non-LGBTQ + people think their words are not inappropriate.
At the same time, double standards in behavior patterns and topics of discussion for LGBTQ + and non-LGBTQ + employees are also common. For example, about 75% of both groups say they feel comfortable talking about their spouse or partners at work, but 36% and 59% of non-LGBT + workers believe that if their LGBTQ + colleagues speak about dating, this is not comfortable or professional, respectively (Fidas & Cooper, 2018). In other words, most workers believe they can discuss personal life with colleagues at work, but only if they are not talking about sexual orientation, gender identity, or same-sex relationships. This approach often excludes LGBTQ + employees from their team communication, since they cannot participate in general discussions and do not want to hear offensive jokes or comments.
The need to work in such an environment has consequences for people with different orientations and gender identities. The most common behavior is to hide one’s orientation or gender identity at work. About 46% of LGBTQ + workers are closed at work because of the possibility of being stereotyped, making others feel uncomfortable, and losing connection and relationships with colleagues (Fidas & Cooper, 2018). In other words, half of LGBTQ + people hide their identities due to an unwelcome work environment to avoid adverse consequences for their careers and relationships with colleagues.
Moreover, people who do not hide their orientation and gender identity, or are afraid that they will be revealed, feel discomfort and are forced to behave in a way that makes them feel stressed. For example, a quarter of LGBTQ + workers feels distracted from work, lie about their personal lives, and feel exhausted due to the need to hide their differences (Fidas & Cooper, 2018). This need also leads to LGBTQ + employees avoiding certain people and social activities, which exacerbates their isolation. Jones et al. (2017) define this behavior by cyclical nature of subtle discrimination, since, in their opinion, isolation is a response to initial discrimination and the opposition of a person to a collective. As a result, one in five LGBTQ + employees searches for a new job, and one in ten quits because of an unwelcome work environment (Fidas & Cooper, 2018). Consequently, subtle discrimination has the same significant consequences for the emotional and mental health of LGBTQ + workers as formal discrimination and also leads to their layoffs and restrictions on career opportunities.
Such restrictions lead to more severe financial and social consequences for LGBTQ + people. First, although there are only 4.5% of LGBTQ + people in the US, they account for 6.2% of people who earn less than $ 36,000 a year (Movement Advancement Project and National LGBTQ Workers Center, 2018). In addition, formal and subtle discrimination in the workplace, layoffs, and lower earnings force some people to become criminals. This situation is especially acute for people who face several types of discrimination at the same time. For example, people of color and LGBTQ + people experience the most discrimination, and 2 out of 3 incarcerated adults are people of color, and 7.8% are LGBTQ + (Movement Advancement Project and National LGBTQ Workers Center, 2018). Simultaneously, one of the most common reasons for recidivism and re-imprisonment is the impossibility of finding a job and getting an education (Movement Advancement Project and National LGBTQ Workers Center, 2018). This situation occurs because the stigma of an offender is added to the stigma of the LGBTQ + person.
Another way that is often chosen by LGBTQ + people who have faced discrimination in the workplace is sex work. Nearly 70% of transgender sex workers report having experienced discrimination in their previous job (Movement Advancement Project and National LGBTQ Workers Center, 2018). This high level of discrimination increases the chances of transgender people becoming sex workers by three times and increases the risk of poverty by four times compared to the general population (Movement Advancement Project and National LGBTQ Workers Center, 2018). Such lifestyle, in turn, negatively affects mental and physical health, since people involved in criminal or sex work face a high level of violence, an increased risk of getting infectious diseases or injuries. Consequently, discrimination in the workplace can lead to significant negative consequences for its victim.
Conclusion
Therefore, this analysis demonstrates that workplace discrimination is a significant social problem that requires a comprehensive solution. Discrimination can manifest itself in employees’ and employers’ different behaviors, such as firing, not hiring, or refusing to promote, threatening, ridiculing, disregarding people based on their differences. At the same time, the diversity of groups of people that are often mistreated demonstrates that most people can be discriminated against for one or more reasons. Therefore, this problem applies to the entire population, and society must fight it.
This paper focused on discrimination against people based on sexual orientation and gender identity as this group is one of the last to receive federal workers’ rights protection. The analysis demonstrates that such a law was necessary to protect LGBTQ + people from direct and formal discrimination, since its consequences lead to higher risks of involvement in criminal activity, sex work, and poverty. However, these outcomes can also be attributed to the majority of people who face discrimination in the workplace. Moreover, the analysis demonstrates that laws are not enough to eliminate such injustice because subtle discrimination is common in everyday interaction but challenging to prove. Consequently, society’s main task is to promote equality and fight against discrimination both at the legal level and at the level of patterns of social behavior and cultural perception..
References
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