Workplace Protection Remains Biggest Issue Facing Same-Sex Couples Following Supreme Court Ruling

Wendy Stryker of New York-based law firm Frankfurt Kurnit Klein & Selz is an employment law specialist, with extensive experience helping clients navigate workplace issues, including discrimination.

Is the Supreme Court ruling all-inclusive?

The rulings are just about marriage. But there are other bundles of rights, covered by separate laws. There is still work to be done, such as the terms and conditions of your employment. Right now, 37 states, including Washington, D.C., recognize same-sex marriage, but only 21 states have workplace protection for sexual orientation. We have national protections for other classes of people, based on race, gender, age and disability. But not for LGBT people. With the Employment Non-Discrimination Act, advocates have been trying since 1994 to pass a federal statute about LGBT protection. They have not been able to do it. It’s left to the states to decide if they’re going to protect it or not.

How does the U.S. compare globally?

I attended a conference in April in England that covered multiple issues surrounding same-sex families — things like marriage, divorce, adoption, and a panel on workplace protection. I was invited to represent the United States in several discussions. I had gone to the conference with the impression that we’re making so much progress: “Look at all the great things we’ve done, and so quickly!” Then I listened to people from other countries talking about how they had widespread protection, some guaranteed by their constitutions. These countries protect all their citizens, and it was a shock to be reminded we don’t. And with workplace rights, there was even less protection than in other areas. I was forced to take a step back and realize we haven’t come as far as they have. Every U.S. lawyer there had a patchwork map of the United States, with some states colored in. And we came to the realization: We only protect some of our citizens, depending on where they live.

How does an individual get workplace protection?

In the U.S., it’s complicated; the person must make strategic decisions in how to define a claim, how to bring it, and where. It’s important to have legal counsel to guide you through it. There are national organizations of lawyers who protect employee rights, and there are state chapters. And it’s not just state laws; sometimes a city has passed laws. If an employee works in multiple locations, they have decisions to make. Or if they work for a big company and are relocating for a job, different laws may apply, even if it’s the same company.

Does corporate America cooperate?

Even though legal protections vary state by state, and city by city, a lot of companies are providing their own protection, even if they don’t have to. In 2012, nearly 97% of the Fortune 500 companies voluntarily included sexual orientation in their employment non-discrimination policies. So your protection is not just a matter of where you live or who you work for.

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