WASHINGTON—Passing the Protecting the Right to Organize Act would be a huge step toward reducing discrimination against gay, lesbian, bisexual, and transgender workers, says the head of the AFL-CIO’s LGBTQ constituency group.
“The best and most durable protection that an LGBTQ person can get at work is a solid union contract,” Jerame Davis, executive director of Pride At Work, told LaborPress.
While a landmark Supreme Court decision of June 2020 held that the Civil Rights Act of 1964’s ban on employment discrimination on the basis of sex extended to sexual orientation and gender identity, he explains, that discrimination “is still a pretty big problem.”
LGBTQ are more likely to live in poverty, he says, especially if they’re Black, Latino, or trans. An April 2020 survey commissioned by the Human Rights Campaign found that LGBTQ people were 36% more likely than the general population to have lost work in the lockdowns when the COVID-19 pandemic hit — 30% of queer and trans respondents said their work hours have been reduced, as opposed to 22% of respondents overall.
Twenty-eight states already have laws barring discrimination on the basis of sexual orientation, Davis says. But without help, a worker trying to win redress has to do the work — such as filing a lawsuit or a complaint with the Equal Employment Opportunity Commission — on their own. With union representation, “the union picks up a lot of work. They file a grievance, they do the legwork,” he says. “There is no law that gives you that kind of support.”
The PRO Act, which the House passed by a 225-209 vote on March 9, would enable more workers to gain that kind of protection. It contains a host of provisions intended to make it easier for workers to form and sustain unions. It would allow workers to win union representation if a majority signed cards; outlaw “captive-audience meetings” where workers have to listen to anti-union messages; establish penalties for employers who fire union supporters; prohibit the permanent replacement of strikers; and repeal the parts of the Taft-Hartley Act of 1947 that ban “secondary boycotts” and allow states to prohibit the union shop.
“The PRO Act makes it easier to form a union and achieve a first contract — and that is especially significant for members of the LGBTQ+ community,” Stuart Appelbaum, president of the Retail, Wholesale and Department Store Union, said in a statement to LaborPress. “With a union contract, you have powerful protections against homophobia and transphobia — even in states lacking those protections. And with a union contract, you are defended from discrimination and harassment; and a contract can even address bathroom access and the healthcare needs of the trans community. That makes it of particular importance to all members of the LGBTQ+ community that the PRO Act be enacted into law.”
The 2020 Supreme Court decision also meant an automatic upgrade in union contracts, Davis adds, because they generally include either an explicit nondiscrimination clause or one that refers to adhering to local, state, and federal antidiscrimination laws.
“It is still important to update contract language to explicitly include appropriate language that prohibits discrimination on the basis of sexual orientation and gender identity or expression,” Pride at Work says. “And unions must enforce these protections to create environments where LGBTQ+ members feel comfortable bringing reports of discrimination to union leaders.”
Union protections are also important, Davis says, because employers usually don’t fire workers for explicitly discriminatory reasons, which makes it difficult for someone who is employed at will to challenge. But under union contracts, workers can’t be terminated without a specific reason — and there is a process to contest employers’ claims that it was for rule violations or poor performance.
Retaliation happens even in supposedly progressive organizations, Davis says. At an online forum in June, he recalls, an Atlanta trans man spoke of how he’d been fired by a local organization that provided services for HIV-positive people for trying to start a union.
“It’s sad, especially in a workplace like that,” he says.
The Senate obstacles
The PRO Act, however, faces a certain filibuster by Senate Republicans, which means it would need 60 votes to pass. It also has not been endorsed by all 50 Democrats and independents; the three Democratic holdouts are Kyrsten Sinema and Mark Kelly of Arizona and Mark Warner of Virginia. Sinema and Sen. Joe Manchin (D-W.Va.) are also the Democrats most unequivocally opposed to eliminating the filibuster.
One PRO Act provision might be included in the pending budget-reconciliation bill: allowing the National Labor Relations Board [NLRB] to fine employers for unfair labor practices such as firing workers for trying to organize a union. The fines would qualify as a budgetary matter because they would be government revenue. The Congressional Budget Office projected that this would bring in $45 million over the next 10 years, House Democratic staffers told LaborPress in July.
Currently, the NLRB can only order an employer to reinstate an unfairly terminated worker and pay them what they would have earned since they were axed, minus anything they’ve made on other jobs in the interim. The PRO Act provision would enable the board to levy fines of up to $50,000, or $100,000 for repeat offenders.
“Labor laws in this nation are broken and outdated, which is why the Senate must pass the Protecting the Right to Organize Act,” American Federation of Teachers President Randi Weingarten told LaborPress. “This legislation, while historic on its own, would be momentous for LGBTQ workers who have endured discrimination in the workplace solely because of their sexual orientation and/or gender identity. When people unionize, they form a collective voice, one that helps them fight injustice and makes the workplace and life better for all workers and their families. We must pass the PRO Act so that we are one step closer to having safe and inclusive workplaces, and tackling the income inequality and civil rights violations faced daily by LGBTQ workers.”
