Stonewall at 50: Uprising Sparked Growth of LGBT Protections

June 28, 2019, 10:00 AM

When New York City police raided the Stonewall Inn 50 years ago today, same-sex relations were illegal in all but one state. Employers could also discriminate against people for their sexual orientation without fear of legal consequence.

The uprising that followed the raid fueled a movement for LGBT rights that continues to this day in the courts and legislatures.

“Very quickly after Stonewall, activists in a variety of American cities and states began fighting for an extension of existing anti-discrimination laws to cover what was called ‘sexual preference’ at the time,” said Marc Stein, a historian at San Francisco State University and author of “The Stonewall Riots: A Documentary History.”

The U.S. Supreme Court will consider next term whether federal civil rights law prohibits workplace discrimination against LGBT people. The House in May approved a law to ban bias at work and in other situations, but its future in the Republican-controlled Senate is uncertain.

With the state of federal law in flux, people who face workplace bias based on their sexual orientation or gender identity have to rely on a patchwork of mostly state and local laws that began spreading in the years after Stonewall.

Progress Despite Deficits

East Lansing, Mich., became the first municipality to bar sexual orientation discrimination in 1972. Now more than 275 cities and counties have comprehensive anti-bias protections for LGBT people, according to the Movement Advancement Project.

Wisconsin in 1982 enacted the first state law barring discrimination based on sexual orientation, five years after such bias was outlawed in Washington, D.C. States added laws protecting LGBT people incrementally over the years, with nine laws added in the 1990s, 14 in the 2000s, and 10 more this decade, according to Bloomberg Law Analyst Dori Goldstein.

A total of 22 states and D.C. currently have express protections for sexual orientation, while 21 states and D.C. prohibit discrimination based on gender identity.

“We’ve made enormous progress as a society in recognizing LGBT people as full members of our communities, both inside and outside of workplaces,” Suzanne Goldberg, a law professor at Columbia University, said.

“The fact that we have serious deficits in anti-discrimination protections is important to be aware of and address, but it does not take away from the tremendous progress we’ve seen in the past several decades,” said Goldberg, who directs Columbia’s Sexuality and Gender Law Clinic and co-directs its Center for Gender & Sexuality Law.

State and Local Protections

The state laws protecting LGBT workers vary in terms of the money damages and other legal remedies available, the standard of causation necessary to prove bias, and the procedural requirements, legal scholars said.

The New Jersey Law Against Discrimination, which protects LGBT employees, is widely viewed as more worker friendly than Title VII of the 1964 Civil Rights Act, said Katie Eyer, a law professor at Rutgers University. That’s because plaintiffs suing for discrimination don’t have to file claims with an administrative agency before going to court.

Other state laws have certain drawbacks for workers. Judges have interpreted the New York State Human Rights Law to require but-for causation, which can be more difficult to prove than bias under a mixed-motive standard under Title VII, said Brian Soucek, a law professor at the University of California-Davis.

Meanwhile, the legal landscape for LGBT people outside of states with express protections can be harsh, leaving many who face discrimination without recourse.

Although hundreds of municipalities have laws against sexual-orientation and gender-identity bias in states without such safeguards, those cities and counties don’t have the authority to provide a private right of action, said Anthony Kreis, a visiting professor at Chicago-Kent College of Law. That means LGBT workers can complain to local enforcement agencies that have the power to issue fines against employers, but workers can’t sue for backpay, damages, and other remedies, Kries said.

Other Routes to Justice

LGBT workers who face discrimination in states where that bias isn’t explicitly banned have some options, legal scholars said.

  • Although Michigan and Pennsylvania don’t have express statutory safeguards for LGBT people, those states’ worker protection agencies have said that their anti-discrimination laws apply to them.
  • Government employees have options that private sector workers don’t. Federal workers can go to the Equal Employment Opportunity Commission, which adjudicates federal sector cases and has ruled that Title VII covers sexual orientation and gender identity. State employees can sue under the Fourteenth Amendment. They also have statutory protections in states like Virginia, Ohio, and Pennsylvania that don’t cover other private sector LGBT workers.
  • LGBT workers for federal contractors can file claims with the Labor Department’s Office of Federal Contract Compliance Programs. That agency enforces an Obama-era executive order forbidding federal contractors from sexual-orientation and gender-identity bias.
  • LGBT employees might be able to bring a tort claim against their employers for discrimination. For example, if a worker is fired based on his or her sexual orientation from a company with an employee handbook saying it doesn’t discriminate against LGBT people, then that might support a viable tort claim.
  • Workers can sue under their state’s anti-discrimination law and argue that it covers sexual orientation or gender identity. The Missouri Supreme Court earlier this year ruled in a case involving a gay worker that employers can’t discriminate against people who don’t conform to gender stereotypes.

Friendly Corporate Culture

In addition to myriad state and local legal protections, LGBT workers also operate in a corporate environment that has grown much more open and accepting.

Corporate America’s growing support for LGBT rights can be seen in changes in the Corporate Equality Index, an annual report issued by the Human Rights Campaign, an influential advocacy group. When HRC published its first report in 2002, 4 percent of the 319 companies surveyed earned perfect scores, compared to 64 percent of the 947 companies surveyed in the most recent report.

“If you’re an enlightened employer and want to be in the mainstream, if you don’t have a policy that protects LGBT employees, then that’s not good for business,” said Jill Rosenberg, a partner at the management-side Orrick Herrington & Sutcliffe.

The trend among many businesses is to have a single policy for protecting LGBT workers for all locations, regardless of whether they’re located in a state without laws expressly barring sexual-orientation and gender-identity discrimination, Rosenberg said. Those policies can also include affirmative steps to protect transgender workers, such as policies for bathroom and changing room access, she said.

‘Straight Back to Stonewall’

Regardless of what the Supreme Court or Congress does about federal law’s scope, the map for LGBT protections seems likely to change.

LGBT rights bills have been considered in states like Virginia, Missouri, Indiana, and Kentucky, according to the American Civil Liberties Union. Still, many states are wrapping up or have completed their legislative sessions for the year.

Local-level efforts continue, as well. Various cities in Ohio, Kansas, and Florida are working on enacting protections for LGBT workers, according to the HRC.

On the other hand, some of the ordinances have been challenged in court. Religious organizations have sued to rollback laws in Austin, Texas, and four cities in Indiana.

The struggle for LGBT rights in the 50 years since Stonewall hasn’t been a perfect line, and there’s been steps back along with the many steps forward, said Ann Bausman, author of “Stonewall: Breaking Out in the Fight for Gay Rights.”

“The line may look jagged,” Bausman said, “but the dots connect and it goes straight back to Stonewall.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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