There is no underestimating the importance of the Equality Act. The measure elevates sexual orientation and gender identity to a class worthy of the same protections as race, ethnicity, religion, and gender. It puts the weight of the federal government behind efforts to end discrimination in the workplace, housing, and other services that most people take for granted. Most importantly, it sends a clear signal that the nation considers discrimination against LGBTQ people to be wrong.
However, as critical as the passage of the measure is, it won’t end workplace discrimination. The odds will still favor businesses, just somewhat less so.
The kind of open, blatant discrimination that led to the Supreme Court’s surprise ruling last year for workplace protections will be harder to get away with. Most employers already know better than to fire someone for joining a gay softball league.
But employers have plenty of tools at hand to get rid of workers they find bothersome. Chief among these is the at-will policy in every state, except Montana. Under those terms, an employer can let you go for any reason – except an illegal one.
That means the employer can still get rid of you as long as ostensibly it’s not for being LGBTQ. And there are plenty of ways to do that without revealing what may be the real reason. Employees can be dinged for poor performance. Job responsibilities can be changed. Department staff can be shuffled around. There can be a few layoffs for financial reasons.
The sad truth is, if an employer really wants to get rid of you for being LGBTQ, it still won’t be terribly difficult. They don’t need a reason, after all.
Moreover, proving discrimination is the reason for your job loss is an uphill battle. According to Workplace Fairness, a nonprofit that promotes workers’ rights, “It is often very difficult to prove that discrimination occurred.”
To do so, it’s best to have what the law calls direct evidence, something that shows clearly that the only reason for your termination was for being LGBTQ. That kind of smoking gun isn’t easy to find unless the employer is sloppy or stupid. (Those employers do exist.)
Lacking direct evidence, you would need to turn to circumstantial evidence to convince a jury that you were the victim of discrimination. That’s a far tougher test to pass. A 2017 analysis of federal discrimination lawsuits found that workers won only one percent of the time.
None of this is to say that the Equality Act isn’t worth the political battle. As a statement about the status of LGBTQ people in society, it’s crucial.
Its passage would have some important effects, including adding the need to protect LGBTQ people to nondiscrimination training. There would no doubt be some high-profile and successful cases that would underscore the importance of federal nondiscrimination protections.
There will also be some practical results for someone wrongfully terminated. The threat of a discrimination lawsuit is often enough to shake loose a settlement from an employer, who figures that the legal costs of defending against the suit are a lot higher than just making a payout without admitting guilt.
But in a system so heavily weighted in favor of the employer, even the Equality Act will have a limited impact. As workers already protected can testify, it’s nice to have the law on your side, but if your employer wants to fire you, they’ll find a way to do so and legally get away with it.
That won’t change until we eliminate at-will employment laws.