Ask Lambda Legal – Job Seeking While Openly Gay

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March 26, 2014
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Gregory R. Nevins, Counsel and Workplace Fairness Program Strategist

Q: I just graduated college, and am looking for my first full-time job. I was very active on campus advocating for LGBT rights, and I’m concerned about how that may affect my chance to find employment. What are my rights with regards to being out while job seeking?

A: Congratulation on getting your degree, and good luck with your job hunt! Despite the progress our community makes every day in gaining acceptance and equality, it’s very common for out and active people such as you to have these concerns. Unfortunately, the short answer to your question is: it depends.

There are 29 states without statutes prohibiting sexual orientation employment discrimination; when such mistreatment occurs in the private sector (meaning non-government jobs), it is challenging to take action against the offending employer. Discrimination is much easier to challenge in the public sector; many states prohibit such discrimination, and the federal constitution also provides protection against irrational anti-gay actions taken by public sector managers. If you’d like to find out more information about a specific location, look at a state-by-state breakdown on our website here: http://lambdalegal.org/states-regions

The patchwork of employment protections for lesbian, gay and bisexual people is a problem that could be fixed nationwide on a federal level with ENDA, the long-delayed Employment Non Discrimination Act. This was recently made perfectly clear when the talented Missouri University football player Michael Sam came out of the closet months ahead of the start of NFL draft. Michael Sam is a highly qualified gay man looking for a job. If Sam is skipped over and not drafted by any NFL team, Sam would be the victim of employment discrimination.

Sam’s situation clearly illuminates the complications that we are currently enduring without ENDA. The NFL, like many private employers, has its own policy that prohibits discrimination based on sexual orientation: the NFL Collective Bargaining Agreement (“CBA”). However, it’s not clear if the CBA applies to potential draftees. After that, Sam could invoke the state anti-discrimination statute in New York, the site of the draft, to hold all the teams accountable. If that doesn’t work, 13 of the 32 teams in the NFL are in states with nondiscrimination statutes. To hold the other 19 teams accountable, he could turn to local ordinances but would wrestle with the absence of ordinances in Charlotte, Nashville, and Jacksonville. Also, while Washington D.C. has a nondiscrimination ordinance, the Washington NFL franchise’s headquarters is in Virginia, whose legislature makes local governments ask permission to enact nondiscrimination laws and always responds “no.”

We need a clear federal law that prohibits discrimination on the basis of sexual orientation, gender identity and expression that applies to all employers and job seekers across the country. Congress should pass the Employment Nondiscrimination Act (ENDA) now.

If you have any questions, or feel you have been discriminated against because of your sexual orientation, contact Lambda Legal’s Help Desk at 1-866-542-8336 or http://www.lambdalegal.org/help.