Marriage Equality & Workplace Discrimination

October 31, 2014
Employees in five states exist in an environment of contradiction.  Indiana, Oklahoma, Pennsylvania, Utah, and Virginia are among the 11 states where marriage equality became reality with the Supreme Court’s refusal to hear appeals related to state bans on same sex marriage.  They are also five states where there are no protections for gays and lesbians in the workplace.  Said differently, being fired for being openly gay is legal in these states.  So, an employee can marry their same sex partner, celebrate, share the joy with co-workers and be out of job the next day.

This, of course, is not an ideal state of affairs.  ENDA, the Employment non-Discrimination Act has languished in Congress with no apparent hope of passing as long as the Republican Party controls the House of Representatives.  Only a decision from the Fifth Circuit Court of Appeals upholding a ban will force the Supreme Court to rule.  Some experts say that is not likely to happen.

So, what can be done in the short term to reconcile the status-quo?  As with many issues in the past, the corporate sector needs to take the lead in formulating and promulgating policy that ends discrimination on the basis of sexual orientation.  This was the case with the granting of personal leaves of absence long before the FMLA came into effect.  In other words, government followed corporate practice in enacting the FMLA.  My sense is that the same can happen now with ENDA.  If big employers take the lead, others will follow as the competition for talent intensifies with the improving economy.

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