Fired For Being Gay

"But did that really create change in that workplace? I don't think it did," she says. "ENDA would really change what people are doing. It would provide protection for people in every state. The majority of people in the U.S. seem to support a fair workplace, but that has not translated into congressional support."

Without a federal law, say Kirchofer and other advocates, many employers know that they can get away with discrimination without fear of much penalty. More than half of all Fortune 500 companies have adopted a policy against sexual-orientation harassment or discrimination, says Jon Davidson, senior counsel at Lambda Legal, a national organization that promotes civil rights for homosexuals. "It shows that they support the concept, which is great," he adds. "But in terms of whether the policies are efficient, well, there's not much you can do about it if the internal procedures are inadequate."

That became painfully apparent to Robert Higgins when he filed a complaint with the human-resources department at New Balance Athletic Shoe's factory in Norridgewock, Maine, in the mid-1990s. During the nearly 10 years he worked on the company's production line, he says he endured welts from rubber bands and hot cement thrown at him by coworkers, constant cursing and epithets, and at least one death threat. "I thought I was protected from this kind of harassment by my company's 'no harassment' policy. New Balance's employee handbook specifically prohibits harassment based on sex and sexual orientation," he writes, in a letter sent to Kennedy earlier this year.

The company policy asked that he immediately notify either his supervisor or the human-resources department. But his supervisor was among those making the lewd and degrading comments. And the human-resources manager wasn't much more helpful. She called him a "highly skilled shoemaker." Then, a month later, she informed him he was fired-and that was just a few months after he'd received a "very good" overall evaluation on his job performance review.

Higgins filed suit against the company, but his claim was dismissed because sexual-orientation discrimination is not prohibited by federal law, nor by state law in Maine. An appeal was similarly unsuccessful, though the ruling of the First Circuit Court of Appeals acknowledged that "the appellant [Robert Higgins] toiled in a wretchedly hostile environment ..."

It went on to read: "We hold no brief for harassment because of sexual orientation; it is a noxious practice, deserving of censure and opprobrium. But we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment-and we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation."