Do Gay Rights Laws Matter?: An Empirical Assessment

Twelve states have laws prohibiting discrimination on the basis of sexual orientation. A law pending in Congress - the Employment Non-Discrimination Act, or ENDA - would extend federal protections to gay workers throughout the country. Some opponents of ENDA have argued that the state laws are used so rarely that a federal law is unnecessary. Indeed, the number of bias claims filed by gay workers does seem surprisingly low, in most states less than a few dozen each year. In this Article, I analyze whether these numbers are truly low. While they seem low, it is also the case that there are relatively few gay people in the workforce. The premise of this study is that the relevant question is not how often sexual orientation claims are filed, but rather how often they are filed per gay worker in the workforce. I generate this population-adjusted filing rate and, to put it in perspective, I compare it to the frequencies with which women file gender discrimination claims and people of color file race discrimination claims in the same states during the same years. My findings belie the heretofore unexamined assumption that gay rights claims are rarely filed. Using a low-end estimate of the number of gay people in the workforce, in 8 of 10 states studied, gay workers file discrimination claims with greater frequency than women file gender discrimination claims, while in half the states, gay workers file bias claims at about the same rates that people of color file race discrimination claims. This data is important not only because it is the first empirical assessment of the use of gay rights laws but also because it will have a critical impact on the on-going Congressional debate about the need for a federal gay rights law.