THE BLOG
08/13/2013 11:27 pm ET Updated Feb 02, 2016

How Effective Are Laws Against Sexual-Orientation Discrimination?

Though Title VII of the U.S. Civil Rights Act provides comprehensive nationwide protection from discrimination based on race, color, national origin, gender and religion, adding sexual orientation to that list remains a controversial topic across the United states. While 20 of the 50 U.S. states offer full legal protections and local ordinances offer some protections in 15 of the 30 states without state-wide protection, many legislators are shying away from extending legal protections further. With an estimated 33 percent of the U.S. population opposing legal protections for lesbians, gays, bisexuals and other sexual minorities, even politicians who privately support such legislation have avoided saying so publicly.

While wage studies comparing the wages of openly gay/bisexual men have consistently shown that they tend to make far less than straight men doing the same work, there is still widespread skepticism over whether such discrimination exists. Raw wages for sexual minorities tend to be lower than wages for straight people despite the fact that 1) gay men tend to be more highly educated on average, and B) gay men are more likely to live in urban areas where wages are higher. Much of this discrimination occurs in occupations that are male-dominated, including management, construction, and production. Though wage discrimination for lesbians is not as clear, lesbians, like gay men, are more likely to be highly educated than straight women. For both gay men and lesbians, however, the lack of legal protections in many states means far less job security and greater instability in their economic situations.

A second problem is that many people are simply not aware that legal protections exist, or that certain types of discrimination are illegal. This is especially true regarding local ordinances that can provide legal protections even if those protections are not available statewide. As the laws protecting sexual minorities become better known (whether through direct experience with the law or through high-profile discrimination cases being discussed in the media), attitudes can be expected to slowly change in the same way that has been seen with other civil rights laws. Still, increased awareness takes time and may not provide much protection at first.

As a result, most gay men and lesbians are not out at work, whether to prevent problems with employers or fellow employees. While many companies have a "don't ask, don't tell" policy, the need for secrecy can have a negative effect on gay and lesbian employees who feel uncomfortable with being out in the workplace. This can include greater anxiety, the need for deception to maintain the "cover" of heterosexuality, and a general undermining of work relationships.

Despite attempts to pass the Employee Non-Discrimination Act (ENDA), which would make it illegal for employers to discriminate on the basis of sexual orientation or gender identity, the legislation remains stalled as of now, in spite of recent hopeful signs. One of the prime tactics being used by legislators opposing ENDA and similar legislation is the argument that legislation alone cannot prevent sexual-orientation discrimination. According to Sen. Susan Collins (R-Maine) in her testimony before the Senate Committee evaluating ENDA in 2002:

[T]he question to me, and the question I want to ask all of you, is: If we impose a federal law which some may view as an unwanted edict ... is that really going to promote acceptance and compliance with the underlying principle that we all want to see?

To answer the question raised by legislators opposing ENDA and similar laws, a recent article published in Psychology, Public Policy and Law presented the results of a research project investigating how sexual-orientation antidiscrimination laws affect how people behave toward sexual minorities. Conducted by Laura G. Barron of the U.S. Air Force Management Policy Division and Michelle Hebl of Rice University, the study looked at sexual-orientation antidiscrimination laws in the Dallas-Fort-Worth-Arlington area.

Since there are no sexual-orientation antidiscrimination laws for Texas as a whole, any legal protections that gays, lesbians, and bisexuals have depend on local ordinances. (Dallas and Fort Worth have antidiscrimination laws, but Arlington does not.) Using phone surveys of people living in the area, the researchers found that the very existence of antidiscrimination laws as well as public awareness of the laws made people less inclined to discriminate and more accepting of sexual minorities in their communities. Still, they also found that a large segment of the population was unaware that the antidiscrimination laws existed.

To test the link between awareness of antidiscrimination laws and acceptance of sexual minorities, Barron and Hebl also conducted field and laboratory experiments that showed that simply becoming aware of these laws was enough to change attitudes for most research subjects. While the researchers raised the usual concerns about how well experimental results generalize to the real world, the results of their three studies seem to provide a clear rebuttal to the objections raised by anti-ENDA legislators insisting that antidiscrimination laws have no impact on community acceptance. These results are especially important since laws against discrimination are only intended to block overt acts of discrimination, involving such things as employment or housing. Becoming aware of antidiscrimination laws can also help with interpersonal discrimination -- that is, how sexual minorities are treated as individuals in their daily lives (despite the fact that such discrimination is often legal in many places).

While opposition to laws such as ENDA is often rooted in the argument that "you can't legislate morality," research studies have consistently shown that this is not the case. Though federal legislation is often not as well-accepted as laws passed on the local level, the impact of antidiscrimination laws on shaping community acceptance appears to be based on how much publicity the laws received when they were passed. As people become more aware of the laws in place to protect minorities from discrimination, their own attitudes toward these minority groups can shift as well.

As the battle over ENDA's passage continues, legislators need to be aware of how powerful new laws can be in changing community attitudes and making lives easier for members of that community to live their lives without persecution.