What hiring discrimination looks like in a state with no statewide LGBT anti-discrimination protection

In Virginia, an ERC civil rights testing investigation revealed possible discrimination against LGBT job applicants.

By Aastha Uprety
April 15, 2019

Last month, members of Congress re-introduced the Equality Act to massive fanfare. The bill, which was first introduced in 2015 and is backed by the Human Rights Campaign and numerous other civil rights organizations, would expand federal civil rights laws to ban discrimination on the basis of sexual orientation and gender identity. This means LGBT individuals would be protected against discrimination in housing, employment, public accommodations, and other sectors like credit and education.

It may come as a surprise to some that such a protection does not already exist. But that is the reality: there is no explicit federal law prohibiting discrimination on the basis of sexual orientation or gender identity.

LGBT individuals are protected by law, however, in a handful of states and localities. Over 20 states have non-discrimination laws protecting individuals from discrimination on the basis of sexual orientation and/or gender identity. Still, nearly half of LGBT Americans live in states with no anti-discrimination protections. This means that, as Equality Act sponsor, Rep. David Cicilline (D-RI), said, “in most states in this country, a gay couple can be married on Saturday, post their wedding photos to Instagram on Sunday, and lose their jobs or get kicked out of their apartments on Monday just because of who they are.”

Virginia is one of those states. In Virginia, only four localities protect against discrimination on the basis of sexual orientation, and only two cities include gender identity as a protected class. A handful of bills that would have instituted civil rights protections for LGBT individuals failed to pass during the General Assembly’s 2019 legislative session.

Last month, the Equal Rights Center released a report based on an investigation into bias against LGBT job applicants in Virginia. The report revealed test results that point to the existence of discrimination against gay and queer job applicants, illustrating the need for statewide anti-discrimination protections in Virginia.

What hiring discrimination looks like in Virginia

Employment discrimination against LGBT individuals has been a focal point of LGBT rights advocates for years. According to a 2013 survey from the Pew Research Center, 57 percent of LGBT respondents stated that equal employment rights should be a “top priority” policy issue. It is through viable employment that individuals are able to make a living, support their families, and survive on a day-to-day basis. Without protections in place, LGBT individuals may struggle to find jobs, face harassment in the workplace, and can even be fired for being gay or transgender.

In particular, hiring discrimination can make it difficult for an LGBT person to even obtain a job in the first place. The unique thing about hiring discrimination is that it can be notoriously difficult to detect—it is impossible for job applicants to really know what’s going on with the decision-making process behind closed doors. Hiring processes for different employers vary, and modern discrimination in hiring tends to be covert. Detecting discrimination is a near-impossible task for somebody with no one to compare their experience to. Thus, a research method like matched pair testing, which the ERC employed in the Behind Closed Doors study, can be very valuable.

The ERC used matched pair civil rights testing to examine possible bias on the basis of sexual orientation in the hiring process. Civil rights testing is the ERC’s main strategy toward achieving its mission and typically involves one or more people covertly engaging in a transaction or interaction in order to uncover discrimination or compare conduct to legal and policy requirements. Matched pair testing is used to detect discrimination by pairing two testers together who engage in the same transaction or interaction one at a time. It compares treatment between two people based on one variable—in this instance, sexual orientation—because all other differences are controlled for.

In matched pair testing, one tester possesses or presents as possessing the attribute that is under investigation—in this case, having a same-gender spouse. The other tester serves as a neutral, control tester—in this case, they had a spouse of a different gender. This way, the two experiences can be compared and evaluated. The image below outlines the basic idea behind the methodology used in this study and illustrates a potential outcome of a matched pair civil rights test:

The scenario shows two job applicants applying for the same job. Applicant 1 says he and his husband recently moved into town so he is looking for a job. Applicant 2 says he and his wife recently moved into town so he is looking for a job. The hiring manager tells applicant 1 that there is nothing available, but tells applicant 2 to come in for an interview.

This study included 10 matched pair tests where a gay/queer and a straight tester paired up to apply and interview at the same jobs. The ERC detected some form of discrimination in three out of 10 tests.

In two tests, the gay/queer tester and the straight tester’s hiring processes had objectively different outcomes. In both tests, the straight tester was offered a job and the gay/queer tester was not, even though there was an extremely high level of standardization when it came to their applications, qualifications, and interviews. Maybe most importantly, none of the testers in these tests suspected that they were being discriminated against, a potential testament to the covert nature of present-day discrimination and an example of the importance of tactics like civil rights testing.

“It demonstrates how hard it is for people to identify discrimination when they might be experiencing it,” ERC Deputy Director Kate Scott said to Metro Weekly. “One of the strengths of civil rights testing is it gives us experiences we can compare with each other. And unless we compare those experiences, we wouldn’t really know there was discrimination happening.”

In a third test, the ERC uncovered possible informal or interpersonal discrimination. Though the test did not produce evidence of a discriminatory hiring decision, the gay tester reported that when he mentioned his husband, two employees looked at each other in open and obvious disbelief. This kind of interpersonal discrimination may not result in objectively different hiring decisions, but it can still serve as a powerful deterrent to LGBT job applicants by creating fear of entering a hostile work environment. This effect may be especially powerful in a state such as Virginia, where LGBT job applicants have little legal recourse in the case of mistreatment.

It can be easy to assume that in today’s day and age, discrimination must be illegal, regardless of whether it happens. In fact, a 2014 YouGov poll found that 62 percent of US respondents thought it was already illegal for an employer to fire a worker for being gay or lesbian. But the reality for LGBT individuals in much of the country is not only the pervasiveness of employment discrimination (53 percent of LGBT individuals report discrimination negatively impacts their work environment), but also the fact that there is very little that individuals can do in response to such discrimination. While there are some relevant court cases pending review at the Supreme Court (including EEOC v. Harris Funeral Homes, Zarda v. Altitude Express, and Bostock v. Clayton County) it is unlikely that protections for LGBT individuals will be secured in that manner any time soon. Thus, in the years to come, state and local-level protections may be increasingly important for the well-being of LGBT Americans.

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