National Coming Out Day and Workplace Protections in Maine Against Sexual Orientation and Gender Identity Discrimination

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This past Saturday, October 11, 2014 was the 26th National Coming Out Day, an annual civil awareness day, now internationally observed on October 11 to promote awareness of lesbian, gay, bisexual, and transgender issues and to celebrate the LGBTQ – “Q” for “queer” or “questioning” – community. “It’s a day to be visible,” Candace Gingrich-Jones, an activist at the Human Rights Campaign, has said. “What we know today is people who know someone who is queer are much more likely to understand the issues of inequality and be supportive of the work to gain that equality.”

National Coming Out Day was founded on October 11, 1988 in celebration of the second March on Washington D.C. for Lesbian and Gay Rights a year earlier, in which half a million people participated to demand equal rights. At that time, no anti-discrimination laws protected people on the basis of their sexual orientation or gender identity. Specifically, LGBT individuals had no legal recourse if discriminated against in employment.

Only as recently as 2005 did Maine firmly establish its anti-discrimination law prohibiting discrimination based on sexual orientation, HIV status and gender identity or expression. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by Governor Baldacci in the spring of 2005. The law went into effect December 28, 2005, making Maine the last New England state to legally protect LGBT individuals from discrimination (but one of the first three states to do so by ballot rather than judicial decision).

The November 2005 vote ratifying the legislation passed earlier that year marked the end of a long struggle in Maine to achieve legal protections for LGBT people. In November 1995, Maine voters rejected an attempt to limit the protected classes to those already included within the non-discrimination law. In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998. Then in November 2000, by the smallest of margins, Maine voters failed to ratify a second anti-discrimination law that had been approved by the legislature.

Today under the Maine Human Rights Act (MHRA), individuals identifying as – or even perceived as – lesbian, gay, bisexual or transgender have legal protection against discrimination in employment, public accommodations, housing, credit and education.

With regard to employment, the MHRA forbids employers from refusing to hire, or discharging, or discriminating against an employee with respect to any employment matter on the basis of the employee’s actual or perceived sexual orientation, identity or expression and also forbids employers from using any employment agency that discriminates. Employment matters include hiring, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment including fringe benefits. The MHRA applies to private employers with any number of employees and local and state governmental employers, as well as employment agencies and labor organizations.

The MHRA does contain a religious exemption to the prohibition of discrimination in employment on account of sexual orientation for certain non-profit religious entities as well as provides an exception when the discrimination is based on a bona fide occupational qualification (BFOQ). However, the BFOQ exception is construed very narrowly, and significantly, the BFOQ exception does not apply to the refusal – and therefore it is an unlawful employment practice to refuse – to select an individual because of the preferences or prejudices of others, including, but not limited to, coworkers, clients, business associates, or customers.

Also, in September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules that expressly acknowledge the existence of sexual orientation harassment. Under these rules, unwelcome comments, jokes, acts, and other verbal or physical conduct on the basis of sexual orientation constitute harassment.

We certainly have come a long way since 1953, when President Dwight D. Eisenhower declared homosexuals a threat to national security and ordered the immediate firing of every gay man and lesbian working for the U.S. government. Today the federal government also has a policy of non-discrimination protecting its employees from sexual orientation discrimination; however, unfortunately, there is currently no federal statute prohibiting private sector sexual orientation discrimination in the workplace and there remains much work to be done to achieve LGBT equality.

The Employment Non-Discrimination Act (ENDA) is federal legislation that has been proposed that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. ENDA has been introduced in every Congress since 1994, except the 109th. Beginning in 2009, ENDA legislation that also included gender identity was introduced in both the House and the Senate. Only just last year, on November 7, 2013, did the Senate approve the 2013 version of ENDA – co-sponsored by our senators Angus King and Susan Collins – with bipartisan support by a vote of 64-32. Last month in the House, on September 17, 2014, a petition was filed, which, if signed by a majority of the House members, would force a vote on the 2013 version of ENDA including a narrow religious exemption. By September 22, the petition had been endorsed by 190 of the 218 Representatives that constitute a majority to force further action.

Maine has been ahead of the federal government, as well as many other states, in protecting employees against discrimination on the basis of their actual or perceived sexual orientation or gender identity; however, more can be done. Harvey Milk used to urge workers to come out, to “stand up and let the world know. That would do more to end prejudice overnight,” he would say, “than anybody would imagine…. Only that way will we start to achieve our rights.”

National Coming Out Day remains significant today, and this November, forty years after the first openly LGBT candidate, Kathy Kozachenko, won elected office in the United States – to a seat on the Ann Arbor, Mich., city council in 1974 – Maine voters will decide whether Maine will become the first state to elect an openly-gay gubernatorial candidate to office.