by Joe Morris
Special Contributor to O&AN

In recent years, major corporations have added “sexual orientation” as a protected group in their anti-discrimination personnel policies. But with only 15 states nationwide crafting similarly defined legislation, those policies have limited legal effectiveness.

In Tennessee, there has been no action at the state level to ban sexual-orientation discrimination, as some who sue former employers are discovering. It is this disconnect between corporate policy and legal standing that looms before some gays, lesbians and transgendered persons who are facing down their former employers in a courtroom, say attorneys and lobbyists working to expand workplace protections.

“The bottom line is, discrimination based on your sexual orientation is just not protected,” says Bill Leech, a Nashville attorney who recently settled a case between two partnered gay men against their former employer, Wal-Mart. “It is not against the law to discriminate against someone because they are homosexual. This isn’t a hurdle; it’s a brick wall. You cannot file a complaint that says ‘You fired me because I’m gay’ and expect it to be upheld.”

A strategy that has worked in some instances is to bring suit based on harassment, rather than discrimination. While that may be seen by some as splitting hairs, it is a legal argument with more weight, he says.

“If you tie it into a hostile-workplace situation, where you’re not suing based on sexual orientation, but not a hostile work environment, then the complaint is that you are being harassed in the workplace, and it is so pervasive that it is interfering with your ability to do your job.”

As cases are filed at the state and federal level, efforts are ongoing to bring more states on board with anti-discrimination language protecting the GLBT community, with success being measured city by city, county by county, state by state, says Carrie Evans, state legislative director for the Human Rights Campaign.

“This year we had a banner year, with four states passing anti-discrimination language, which is more than in any other year,” Evans says, adding that two of those efforts were met with vetoes.

Still, the measures will be back in the next round of legislative sessions, where they meet with a more positive fate. In Washington State, for example, the inclusive language fell one vote short in the state senate. Furthermore, protections are being ratified in states with Republican governors, so it’s not, Evans says, a matter of which party controls the state house.

And even though lawsuits such as the one filed by Leech’s clients against Wal-Mart get attention because they highlight a certain hypocrisy on the part of the corporation, it usually is in a company’s best interest to honor its own anti-discrimination policies, she adds. When these companies do honor their anti-discrimination policies, the momentum at the state-level increases.

“If there are companies in a state that have [sexual orientation anti-discrimination policies], it makes it easier at the state-level. If they say to legislators that they’ve had this in place for years, and it has been good for business in terms of attracting and retaining employees, then legislators have cover,” Evans says.

But even as work continues at the state-level, efforts are ongoing in Washington to get the Employment Non-Discrimination Act passed. With one stroke, ENDA, which has languished in Congress since 1996, would accord full civil rights protection to GLBTs in the workplace.

“It always comes close to passing,” Evans says. “When we have state victories, it feeds into the national strategy. It’s much harder for a congressman or senator to cast a vote against ENDA when his or her own state has an anti-discrimination law. We have 15 states now, and we’re working toward a critical mass of 25 states.”

In the meantime, Leech cautions that GLBT employees need to recognize that, at least in Tennessee, they have no legal cover.

“People just don’t understand that,” he says. “They think it is against the law to discriminate based on their sexual orientation (when there is no legal protection), even if the company policy says that won’t. Gays and lesbians don’t have any protection there, and they have never had any protection. We won’t until ENDA is passed, or until our state legislature passes its own state law.”