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By Sarah Hauer July 9, 2015

Mark Pocan says most states don’t have workplace protection from sexual orientation discrimination

After the U.S. Supreme Court announced its decision making same-sex marriage the law of the land, U.S. Rep. Mark Pocan called for additional rights to be recognized for gay Americans.

Pocan, a Democrat from Madison, has long been an advocate of government allowing same-sex marriage. Years after Pocan married his partner in Canada, he made headlines in 2013 when his husband was issued an ID given only to spouses of members of Congress.

Pocan issued a statement on June 26, 2015 praising the high court’s landmark ruling, but also to argue the fight for gay rights is not over.

"Today, the Supreme Court has reaffirmed what a majority of Americans already know: all couples should have the right to marry, regardless of who they love.

"As we celebrate this victory, we must also recognize that we still have work to do to ensure all Americans are treated fairly under the law, regardless of sexual orientation or gender identity."

The next step in the gay rights movement:

"In a majority of states you can now marry freely," Pocan said, "but can still be fired because of who you love."

The first part of Pocan's claim refers back to the Supreme Court ruling. And after the ruling, Pocan is obviously on point -- not only is same sex marriage permitted in a majority of states, it is allowed everywhere.

But what about the second half of the claim, which focuses on workplace discrimination.

Can someone be legally terminated in most states because of their sexual orientation?

Let’s take a look.

The legal landscape

The Civil Rights Act of 1964 protects workers from discrimination at the federal level.

Title VII of the law prohibits employment discrimination based on race, color, religion, sex and national origin. Title VII's definitions of "because of sex" and "on the basis of sex" do not mention sexual orientation.  

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So, there is no federal law that explicitly forbids employment discrimination based on sexual orientation. Legislation has been proposed and failed in nearly every Congress since 1974 that would prohibit employment discrimination because of sexual orientation or gender identity.

In the 1989 Supreme Court case Price Waterhouse v. Hopkins, the court ruled sex stereotyping is a form of discrimination protected against under Title VII. Some extend this ruling to protect gay workers who do not conform to gender norms.

Gwendolyn Leachman, an assistant professor at the University of Wisconsin Law School, said evidence showing the employee was discriminated against for failure to conform to gender stereotypes is necessary.

"If the employer can show that the harassment or other adverse action was motivated ‘purely’ by sexual orientation, then the employee is out of luck," Leachman said.

The Equal Employment Opportunity Commission, the agency tasked with enforcing the Title VII, has interpreted Title VII protections to include sexual orientation.  

Some courts follow the EEOC interpretation. In Terveer v. Billington, the U.S. District Court for the District of Columbia ruled in March 2014 that the discrimination based on someone's status as homosexual was based on gender stereotypes and was covered under Title VII.  

But not all courts agree. In fact, Terveer v. Billington is an outlier. And the Supreme Court has yet to hear a case on this matter.

For a worker to have legal protection from discrimination based on sexual orientation, the worker would need to live in a state -- or a city -- that prohibits it. With protections in place, a worker could file a wrongful termination lawsuit on that basis.

Nearly every state has adopted an anti-discrimination law similar to the federal Civil Rights Act. Indeed, many of the state laws provide additional protection for sexual orientation.

In a June 2014 fact check of another statement made by Pocan, we learned Wisconsin was the first state to enact a law banning discrimination because of sexual orientation.

So how many states followed suit?  

Pocan's team sent  a map from the Human Rights Campaign, an LGBT civil rights advocacy group, to support his claim.  

The map showed that 22 states have explicit laws protecting workers from discrimination based on sexual orientation. That means 28 states -- a majority -- do not have explicit laws protecting workers from discrimination based on sexual orientation.

Our rating

Pocan said, "in a majority of states you can now marry freely, but can still be fired for who you love."

Federal law does not explicitly protect against this discrimination, though the agency tasked with enforcing the law has interpreted federal protections to include sexual orientation. Meanwhile, 28 out of 50 states do not have such laws.

We rate Pocan’s claim Mostly True.

Our Sources

Phone conversation with Meg Vergeront, partner, Stafford Rosenbaum LLP, July 7, 2015.

Phone conversation with Gordon Hylton, professor, Marquette University Law School, July 1, 2015.

Email exchange with Mike Pinto, media relations coordinator, American Civil Liberties Union.

U.S. Equal Employment Opportunity Commission, What you should know about EEOC and enforcement  protections for LGBT workers.

U.S. Equal Employment Opportunity Commission, Agencies release guide on LGBT discrimination protections for federal workers.

Email exchange with David Kolovson, communications director, Congressman Mark Pocan.  

Phone conversation with Jeanne Goldber and Carol Miaskoff, Office of Legal Counsel, U.S. Equal Employment Opportunity Commission, July, 1, 2015.  

National Conference of State Legislatures, State laws on employment-related discrimination, January 2014.

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Mark Pocan says most states don’t have workplace protection from sexual orientation discrimination

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