By: Tiffanie Benfer, Esq.
If you have time to escape to the movies this weekend, I recommend: “Milk.” Sean Penn was terrific. Do we think that Harvey Milk would be pleased with the progress we’ve made on civil rights protection for gays? Probably not.
Thirty years after Harvey Milk’s assassination, bigotry and discrimination against gays and lesbians remains socially acceptable in too many circles and legal in too many states.
Despite my general optimism about protection of civil rights in the new Obama administration, the failure of Proposition 8 in California shows that we still have a long way to go before civil rights for the GLBT community are recognized. Obama hasn’t sent signals that he will go out on a limb on this issue. During the campaign he was noncommittal at best on the question of gay marriage. Obama’s choice of Rick Warren to do the invocation at the inauguration may be seen as reaching out to cultural conservatives at the expense of gays and lesbians. (I’m not sure whether his more recent announcement that openly the openly gay Episcopalian bishop, Gene Robinson, would also be presenting a prayer during ceremonies will help.)
I think that our children’s generation will look back the arguments against gay rights with the same sense of outrage as we feel when we see footage of those who opposed integration in the 60’s.
In the meantime, from an employment law perspective, we have a long way to go. Many people are surprised to learn that federal civil rights laws do not prohibit discrimination based on sexual orientation. There are ways around this, and there are numerous cases where harassment of a gay employee has been held to violate the proscription against gender discrimination, because the harassment was grounded in the employee’s failure to meet gender stereotypes.
As usual, New Jersey’s state law is more progressive on this issue than Pennsylvania’s. Gays and lesbians are protected by New Jersey’s Law Against Discrimination, but Pennsylvania’s Human Relations Act does not provide any protection. I discussed possible theories of recovery in Pennsylvania in more detail in an article published a couple years ago in the Hill Wallack Quarterly, “Protection Against Discrimination on the Basis of Sexual Orientation: Pennsylvania’s Scattered Approach.” Here’s the link:
It seems to me that the issue of equal rights for employment and housing is a touch less charged for middle America than the issue of gay marriage. Although I feel that both are important civil rights issues, it may be more effective in the end to address one issue at a time. Here is hoping that Congress will hear from the majority of Americans who want equal employment opportunities for everyone.