Kirchofer had worked at the industrial packaging and supply company in Seattle for nearly three years by then but was just beginning to come out about her sexuality. “They basically told me to remain invisible,” she says.
Kirchofer duly kept mum about her sexual orientation at work. But a few months later, word got out that Kirchofer, a skilled soccer player, would be playing in the Gay Games in New York, an international competition that attracted more than 11,000 athletes from around the world. When she returned to work the week after the games, she was told she no longer had a job.
Kirchofer had always received good marks on her job performance reviews, and had even been promoted. “I offered to take another job within the company at a lower salary, since [the owner] said the money he was paying me was causing the company to take a loss,” she recalls, though she says she knew what he said wasn’t true. The owner’s response, according to Kirchofer: “We don’t want you in any capacity at this company.”
Kirchofer was terminated, effective immediately-without severance or warning. “I was blindsided,” she says. “Even as I relay it now, it is still a devastating thing to recount. To fire someone based only on sexual orientation, not job performance, is a horrific thing to have happen.”
It may be horrific, but it’s not illegal in all but a dozen U.S. states.
That may soon change. Last week, a Senate panel passed a bill whose first version appeared more than 25 years ago and which has since been reincarnated in various forms, including legislation that failed by one vote in the Senate in 1996. This time, there are 43 cosponsors in the Senate for the Employment Non-Discrimination Act (ENDA), which specifically prohibits employment discrimination of any kind on the basis of sexual orientation. The bill also has 190 cosponsors in the House of Representatives, 21 of them Republicans. And it has received endorsements from an unprecedented number of major U.S. corporations ranging from Microsoft to Harley-Davidson.
“We are long overdue in providing this basic protection to America’s workforce,” says Sen. Edward Kennedy, the bill’s chief sponsor. “A federal law is sorely needed to ensure that all Americans receive equal treatment in the workplace.”
The bill has yet to go before the full Senate, but Senate Majority Leader Tom Daschle has told gay-rights advocates that he is committed to bringing it before his colleagues before this session ends.
Twelve states and the District of Columbia have already enacted statutes barring sexual-orientation discrimination in the workplace, and more than 220 cities and counties nationwide have similar ordinances in place. But advocates say they are not nearly as effective as a federal law would be.
Kirchofer found that out when she filed a complaint under Seattle’s ordinance. The city was one of the first to enact a local law against sexual orientation discrimination in the workplace. Elliott Bronstein, spokesperson for the Seattle Office for Civil Rights, says sexual orientation was included among a longer list of protected classes when the city first adopted an ordinance in October 1973. But there were limits to how much a company found guilty of discrimination could be fined or otherwise penalized.
Records show Kirchofer’s case was reviewed by the city’s human-rights department in 1995, which found in her favor. Bronstein could not reveal more details but Kirchofer says her company was asked to pay her $1,000, which she donated to charity. Her ex-employer was also required to attend a diversity workshop. Kirchofer says she felt vindicated by the city’s support.
“But did that really create change in that workplace? I don’t think it did,” she says. “ENDA would really change what people are doing. It would provide protection for people in every state. The majority of people in the U.S. seem to support a fair workplace, but that has not translated into congressional support.”
Without a federal law, say Kirchofer and other advocates, many employers know that they can get away with discrimination without fear of much penalty. More than half of all Fortune 500 companies have adopted a policy against sexual-orientation harassment or discrimination, says Jon Davidson, senior counsel at Lambda Legal, a national organization that promotes civil rights for homosexuals. “It shows that they support the concept, which is great,” he adds. “But in terms of whether the policies are efficient, well, there’s not much you can do about it if the internal procedures are inadequate.”
That became painfully apparent to Robert Higgins when he filed a complaint with the human-resources department at New Balance Athletic Shoe’s factory in Norridgewock, Maine, in the mid-1990s. During the nearly 10 years he worked on the company’s production line, he says he endured welts from rubber bands and hot cement thrown at him by coworkers, constant cursing and epithets, and at least one death threat. “I thought I was protected from this kind of harassment by my company’s ’no harassment’ policy. New Balance’s employee handbook specifically prohibits harassment based on sex and sexual orientation,” he writes, in a letter sent to Kennedy earlier this year.
The company policy asked that he immediately notify either his supervisor or the human-resources department. But his supervisor was among those making the lewd and degrading comments. And the human-resources manager wasn’t much more helpful. She called him a “highly skilled shoemaker.” Then, a month later, she informed him he was fired-and that was just a few months after he’d received a “very good” overall evaluation on his job performance review.
Higgins filed suit against the company, but his claim was dismissed because sexual-orientation discrimination is not prohibited by federal law, nor by state law in Maine. An appeal was similarly unsuccessful, though the ruling of the First Circuit Court of Appeals acknowledged that “the appellant [Robert Higgins] toiled in a wretchedly hostile environment …”
It went on to read: “We hold no brief for harassment because of sexual orientation; it is a noxious practice, deserving of censure and opprobrium. But we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment-and we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation.”
Last year, Lambda Legal reported nearly 700 phone calls in 2001 with complaints related to sexual-orientation discrimination at work-second only to calls related to family matters. And Davidson says that number is just a fraction of the actual cases out there, as many people don’t report incidences of harassment or discrimination against them, feeling that filing a complaint would be futile.
“One of the needs for a national law is that in the states where discrimination is most prevalent, you are least likely to get an antidiscrimination law passed,” adds Davidson. “Right now, we have a patchwork of protections, and it’s not right that people could be subjected to discrimination in some parts of the country without any redress. We need a national law that protects all workers-no employee should be denied equal treatment at work because of whom they love.”
Most Americans seem to agree. In a NEWSWEEK poll last week, 85 percent of Americans said there should be equal rights for gays and lesbians in terms of job opportunities-up from 59 percent in a NEWSWEEK poll conducted in 1982. And a nationwide Harris Interactive poll taken in June 2001 found that 61 percent of Americans favored a federal law prohibiting job discrimination based on sexual orientation. The 2001 survey also found that 42 percent of adults surveyed believe that such a law currently exists.
Despite increasing public support, the bill still faces a tough fight. Lawmakers who oppose its passage argue that enacting a federal law could mean more litigation. Alabama Republican Sen. Jeff Sessions said last week that the measure would also make it more difficult for those employers trying to terminate an employee with just cause. Indeed, there have been some cases in which courts dismissed claims of sexual-orientation discrimination against employers or ex-employers as baseless.
But advocates of the bill point to studies within the 12 states that have similar laws on the books that found little increase, if any, in the number of job-discrimination lawsuits based on sexual orientation. Despite opposition voiced by some lawmakers, its supporters remain optimistic about its prospects for passage. “Passing the bill won’t be easy but the chances of it passing have never been better,” says Winnie Statchelberg, political director for the Human Rights Campaign, the largest national lesbian and gay political organization.
“Even if the measure doesn’t pass the House this year, passing the Senate is significant. It will be that much easier the next time. It means we’ve gotten over that hurdle,” adds Lambda’s Davidson. “It is a struggle, but I think we are finally making significant progress.”
