By Liz Massey, August 2015 Issue.

And yet. If there were two words that could completely encapsulate the state of the LGBT American workplace, “and yet” might be the phrase.

In the past 20 years, the percentage of Fortune 500 companies with inclusive anti-discrimination statements has skyrocketed from 5 percent to 89 percent that cover sexual orientation, and 66 percent that cover gender identity. Corporate recruiters are seeking a diverse workforce, and more and more businesses are recognizing that having a workplace where all people can bring all of themselves to work results in better solutions and better results.

And yet: 53 percent of all LGBT employees do not feel comfortable enough to come out at work, according to the Human Rights Campaign’s 2014 study, “The Cost of the Closet.” A third of LGBT employees feel compelled to lie about their personal lives at work, and nearly a fifth report being exhausted from spending time and energy hiding their identities.

Being an out queer professional can still be a challenge, but there are many bright spots, as well. Businesses have actually outpaced government in putting anti-discrimination protections in place, and recent legal shifts are making it easier to demand justice if an LGBT person is harassed or fired for being gay. While discrepancies between the ideal of workplace equality and the reality of life at the office remain, many advocates are working hard to close the gap.

The Patchwork of Protection

The stark reality for anyone in Arizona seeking reassurances that they will have recourse if they’re fired for being LGBT is that no state or federal statute protects them. A handful of cities (including Phoenix, Tucson and Tempe) bar discrimination on the basis of sexual orientation or gender identity, protecting about one-third of the state’s 119,000 LGBT employees.

According to a January 2015 report produced by The Williams Institute of the UCLA School of Law, despite the fact that more than 75 percent of Arizonans say they oppose employment discrimination for LGBT persons, the practice remains rampant, with as many as 77 percent of transgender respondents reporting harassment or discrimination at work.

Another challenge in areas where inclusive employment protections have been passed are the wave of more than 100 so-called “religious freedom” bills that have been filed in state legislatures this year. Sarah Warbelow, HRC’s legal director, said that the bills took direct aim at the fairness toward LGBT employees that the anti-discrimination laws were intended to foster.

“A subset of those bills … would permit employers to challenge laws and ordinances that protect LGBT people from discrimination in areas such as employment, housing, and services,” she noted. “When a Republican legislator in Georgia introduced a positive amendment to the state bill to ensure that it could not be used to undermine non-discrimination protections, legislators pushing [it] complained that it gutted the purpose of the bill.”

For many years, LGBT advocates had pressed the passage in the U.S. Congress of the Employment Non-Discrimination Act (ENDA), which would have banned workplace discrimination for LGBT persons.  However, in response to the broadside attack on LGBT freedom represented by the religious-freedom legislation, HRC and other national organizations are currently working with key senators and representatives on a comprehensive federal LGBT non-discrimination bill to be introduced in this session of Congress, Warbelow said. In addition to addressing discrimination in employment, the legislation will cover core civil rights including housing, credit, education, federal funding, jury service and public accommodations.

Title VII - A New Hope?

One real breakthrough on the employment-law horizon, and one that is not widely known about, comes out of the U.S. Equal Employment Opportunity Commission, a government agency charged with enforcing federal laws related to employment discrimination.

In recent years, the commission has interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, as protecting LGBT employees from discrimination or harassment.

Mary Jo O’Neill, a regional attorney for the EEOC’s Phoenix district office, explained that a 1989 U.S. Supreme Court case, Price Waterhouse v. Hopkins, set the stage for this interpretation, when the high court ruled that a female accountant who was denied promotion to partner at the accounting firm because her gender presentation was not “feminine” enough was covered by Title VII. Because the language of Title VII bans discrimination “because of sex,” O’Neill said that she and other attorneys had long believed that it should cover LGBT employees, whose discrimination and harassment almost always stem from their inability to meet the gender-role stereotypes of an employer or co-worker.

O’Neill said, the EEOC’s current position on Title VII represents “a very exciting expansion of civil rights.” She also said that until federal-level legislation like ENDA or the current omnibus bill is passed, Title VII protections are the best hope for LGBT employees living in the 29 states where employment anti-discrimination statutes don’t cover sexual orientation. (A total of 32 states do not cover gender identity in this regard.)

“Until ENDA is passed, Title VII is what we’ve got,” she added.

Business Benefits From Inclusion

HRC’s “Cost of the Closet” study, mentioned earlier, documented some of the fears that still remain for LGBT workers who want to be open about their personal lives at work. However, that study, and information from many other sources, indicate that a lot of businesses do understand the benefits of having an inclusive workplace.

Beck Bailey, deputy director of employee engagement for HRC, asserted that businesses across the nation were making strides in not just protecting, but welcoming their queer employees.

“Equality at the Fortune-ranked companies has been unprecedented,” Bailey said. “Just last year, 150 of the Fortune 500-ranked businesses achieved a 100 percent rating on HRC’s 2015 Corporate Equality Index (CEI), with 14 of the top 20 Fortune-ranked businesses at this top score.

“It has become clear since the inception of the CEI in 2002 that LGBT-inclusive policies and practices is not just the right thing to do, but it is good for business. Competitive businesses strive to create the most inclusive and welcoming environments in order to attract and retain top talent, especially at a time when millennials – a population that has shown to be overwhelmingly supportive of LGBT non-discrimination protections – are quickly becoming the largest share of the American workforce.”

Tony Talbot, CFO of Out & Equal Workplace Advocates, a nonprofit organization dedicated to achieving lesbian, gay, bisexual and transgender workplace equality, said that the companies most advanced in their recognition of LGBT employees were seeking out talented professionals and touting their diversity initiatives to potential recruits.

“There is extreme competition among Fortune 1000 companies for the best and the brightest,” he said. “If one company is seen as not being inclusive, it is to the benefit of their inclusive competitors.”

He also noted that if these companies didn’t match their words to their deeds, LGBT employees were noticing – and taking their skills elsewhere.

“Some companies are very successful in the recruiting phase, but if a newly hired LGBT employee looks around and doesn’t see any out or open senior leader who is LGBT or any senior ally, then they make look outside the company for further promotion and career advancement,” Talbot said.

A Frustrating Double Standard

Despite this progress, one of the most paradoxical challenges of being out at work at this point in American history was revealed by the “Cost of the Closet” survey, which included polling data from a set of non-LGBT workers. According to the report, while 81 percent of non-LGBT respondents felt that LGBT people “should not have to hide” who they are in the workplace, less than half of non-LGBT employees would feel comfortable hearing LGBT workers talk about dating, and 70 percent of non-LGBT workers agreed that “it is unprofessional” to talk about sexual orientation or gender identity in the workplace.

The report elaborated on how this gap in perception created an environment where LGBT people were rejected, or feared being rejected, for sharing the same sort of “water cooler conversation” items that straight and cisgendered colleagues did without a second thought.

“When sharing the same day-to-day anecdotes with co-workers, LGBT people are seen as over-sharing, or forcing their “lifestyle” upon co-workers,” the authors of the report said. “At worst, LGBT workers’ stories are seen as inappropriate, where the same stories told by non-LGBT workers are simply innocuous personal facts.”

According to Bailey, these opinions highlighted that it is not enough to pass laws to protect LGBT workers – the prevailing workplace culture must also change.

“Cultural competency in regards to LGBT issues is also an important goal when it comes to changing workplace climate,” Bailey said. “Even when policies are in place, if LGBT employees do not feel that their workplace atmosphere is welcoming, then they are not inclined to ‘bring their whole selves’ to work, thus creating barriers to being fully engaged and productive. So while it is essential to have a federal bill protecting LGBT employees, this must be coupled with ongoing training and awareness within our workplaces themselves in order to create the most effective change.”

Unlocking The Office Closet

Talbot suggested that LGBT employees who were already out, and would like to see their employer take steps to become a welcoming workplace, could attend his organization’s workplace summit (scheduled this year for Oct. 5-8) or its LGBT Equality Institute to gain additional tools. Bailey oversees numerous initiatives at HRC that relate to workplace equality, including a biweekly webinar series, “The Look Forward,” that discusses current developments and what’s new in workplace inclusion.

In the end, Talbot suggested, being out at work benefitted both the employer as well as the employee, who was better able to showcase their entire skillset and personality when they did not have to cover up part of who they were.

“Be yourself – network – let people see the real you – engage with people,” he advised. “The adage, ‘it’s not what you know but who you know,’ is very true. Many moves and career opportunities come from someone knowing someone.”