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What could possibly get Oregon's Teacher of the Year fired? A state investigation found Brett Bigham, a special education teacher, was let go earlier this year after he faced anti-gay discrimination and complained about the harassment, suggesting the termination was an act of retaliation.
Bigham recently came out of the ordeal with a $140,000 settlement from Multnomah Education Service District (MESD). But if he lived across the border in Idaho, he may not have been so lucky: Idaho is one of 18 states that don't ban workplace discrimination against gay public sector employees. And Bigham's situation would have been even worse in the private sector in other states — 28 states don't explicitly prohibit discrimination against gay private sector workers in their laws.
Bigham was named Oregon's 2014 Teacher of the Year. But after he began speaking openly about his sexual orientation in speeches, he was allegedly harassed at work. And when he reported the harassment, he said MESD fired him in retaliation.
MESD said it had trouble with Bigham's "performance, insubordinate behavior, and focus on matters other than his students," according to local news station OPB. The agency accused Bigham of spending too much time out of class for speeches and other events. Its own commissioned investigation found no evidence of discrimination or harassment.
But an investigation by Oregon's Bureau of Labor and Industries backed some of Bigham's claims, according to a summary memo obtained by OPB: "If the case had gone forward, a determination of substantial evidence of discrimination and retaliation on the basis of [Bigham's] sexual orientation, whistleblowing activity, and for opposing unlawful practices … would have been recommended."
To Bigham's advantage, he lives in a state that bans workplace discrimination based on sexual orientation against public and private sector employees, which perhaps helped him obtain a settlement. But it's a concerning fact for America's gay teachers and LGBTQ advocates that geography plays a huge role in whether employees like Bigham are protected.
31 states don't ban discrimination against sexual orientation or gender identity
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Thirty-one states lack civil rights laws that would ban discrimination based on sexual orientation or gender identity in the workplace, housing, or public accommodations (hotels, restaurants, and other places that serve the general public).
As a result, more than half of LGBTQ Americans, according to the LGBTQ advocacy group Movement Advancement Project, live in a state where, under state law, an employer can legally fire someone because he's gay, a landlord can legally evict someone because she's lesbian, and a hotel manager can legally deny service to someone who's transgender — for no reason other than the person's sexual orientation or gender identity.
Currently, 19 states ban discrimination based on sexual orientation and gender identity, while three additional states ban discrimination based on sexual orientation. Some other states protect public but not private employees from discrimination. Many municipalities have nondiscrimination laws that only apply within their local borders, even in states that don't have such laws. And some companies prohibit discrimination in their own policies.
The protections can further vary from state to state. Massachusetts's protections for gender identity and Utah's protections for sexual orientation and gender identity don't apply to public accommodations. Some states also include exemptions for discrimination based on religious grounds. Enforcement varies, as well: Depending on the state, private lawsuits, fines, and jail time are all possible forms of punishment for discrimination.
These nondiscrimination protections build on existing federal and state laws — most notably the Civil Rights Act of 1964 and Fair Housing Act, which protect people from discrimination based on their race, color, national origin, religion, and sex. (Some LGBTQ advocates argue that legal prohibitions against sex discrimination already protect LGBTQ people. But that interpretation hasn't been affirmed by higher courts, casting uncertainty over whether it would hold up in legal disputes.)
Most Americans think LGBTQ people are already protected under the law
Surveys show that most Americans widely support nondiscrimination protections, but a major hurdle to getting the laws passed may be that Americans already think they're in place.
In a 2014 poll from YouGov and the Huffington Post, 62 percent of respondents said it was already illegal under federal law to fire someone for being gay or lesbian, 14 percent said it was legal, and 25 percent weren't sure. The same poll found most Americans — 76 percent — said it should be illegal to fire someone for being gay or lesbian, while just 12 percent said it should be legal.
The YouGov and Huffington Post poll isn't the first to find strong support for civil rights protections for LGBTQ people. Another 2014 survey commissioned by HRC, an LGBTQ advocacy group, found 63 percent of US voters favored a federal law that protects LGBTQ people from employment discrimination, while just 25 percent opposed it.
For LGBTQ advocates, the overall results present a tricky situation: Most Americans support nondiscrimination protections for LGBTQ people, but they don't appear to know that these protections aren't currently explicit under the law.
"When people already think these protections are in place, it can be difficult to work up the motivation that's necessary to push for them," Ian Thompson, LGBTQ legislative director at the American Civil Liberties Union, said in April.
So while Americans would be right to assume that employees like Bigham are protected in Oregon, the same assumption wouldn't fly for many other states' laws.
