Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment

By Brad Sears, Nan D. Hunter, Christy Mallory
September 2009

This report finds that there is a widespread and persistent pattern of unconstitutional discrimination by state governments on the basis of sexual orientation and gender identity, and there is no meaningful difference in the pattern and scope of employment discrimination against LGBT people by state governments compared to the private sector and other public sector employers.  There is also evidence that the list of documented examples that we have compiled far under-represents the actual prevalence of employment discrimination against LGBT people by state and local governments. This finding will support Congress in exercising its authority under Section 5 of the 14th amendment to provide a private right of action for damages under ENDA to state government employees who have suffered discrimination.

Testimony of Brad Sears on ENDA before the House Committee on Education and Labor, 9/23/2009

Title Page

Table of Contents

Executive Summary

1. Estimates of LGBT Public Employees

2. Sovereign Immunity and Section 5 of the 14th Amendment

3. Constitutional Rights Violated by Employment Discrimination Based on Sexual Orientation or Gender Identity

4. Relationship of Sexual Orientation and Gender Identity to Performance in the Workplace

5. The Legacy of State Laws, Policies, and Practices, 1945-Present

6. Findings of Discrimination by Courts and Legal Scholars

7. Findings of Discrimination by State and Local Government Officials

8. Congressional Record of Employment Discrimination on the Basis of Sexual Orientation and Gender Identity by Public Employers, 1994-2007

9. Surveys of LGBT Public Employees and their Co-Workers

10. Analysis of Wage Gap between LGB Public Employees and their Co-Workers

11. Administrative Complaints on the Basis of Sexual Orientation and Gender Identity

12. Specific Examples of Employment Discrimination by State and Local Governments

13. Voter Initiatives to Repeal or Prevent Laws Prohibiting Employment Discrimination on the Basis of Sexual Orientation or Gender Identity, 1974-Present

14. Other Indicia of Animus against LGBT People by State and Local Government Officials, 1980-Present

15. Analysis of State Laws and Executive Orders Prohibiting Employment Discrimination on the Basis of Sexual Orientation or Gender Identity

PowerPoint Presentation: Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment

Acknowledgements

Other Submissions to Congress

NAACP
AFSCME
NEA
Leadership Conference on Civil Rights
ACLU
NCLR
Lambda Legal
GLAD
Transgender Law Center
The  National Gay & Lesbian Task Force
TCOPS
GLSEN
Professor M.V. Lee Badgett
Professor William Eskridge
Professor Stuart Biegel
Professor Art Leonard
National Asian Pacific American Bar Association
Women’s Law Project
Legal Momentum
The Legal Aid Society- Employment Law Center
National Women’s Law Center
Legal Voice
Federally Employed Women
Chicago Women in the Trades
Clearing House on Women’s Issues
Southwest Women’s Law Center
Wider Opportunities for Women

Appendices- 50 State Reports

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming