State of discrimination.

As Congress considers a federal workplace nondiscrimination bill, states with similar laws experience the ramifications of such legislation

If states are the laboratories where the nation's public-policy ideas are tested, the results of nine experiments await the attention oil f those crafting the federal Employment Non-Discrimination Act. One experiment, in Wisconsin, has been under way for nearly 15 years, while the others are of more recent vintage. And although state and local laws banning discrimination based on sexual orientation differ in their coverage, two themes recur: They work--for some people. And they are not used very often.

In Wisconsin just 41 complaints of antigay discrimination were filed in 1983, the first year the law was in effect. The number rose in the next few years but has stabilized at just over 100 cases a year--a tiny proportion of the 4,000 discrimination cases filed in the state each year, says LeAnna Ware, director of Wisconsin's Civil Rights Bureau, which enforces the law. No one knows why the figures are so low. Ware says fear of coming out publicly may play a role. "Some people think it's not worth it to go through the agony of filing a complaint," she says.

Jane Schacter, an associate professor of law at the University of Wisconsin-Madison who specializes in sexual-orientation issues, says the very existence of the law may have caused some employers to cleanup their acts. "Publicizing the law and encouraging voluntary compliance," she says, "is an important ingredient."

Whatever the reasons, Wisconsin is not alone in its dearth of complaints. Vermont's law took effect in 1991, but it took nearly a year for the first complaint to be filed, says Seth Steinzor, the state's assistant attorney general for civil rights, whose agency handles discrimination complaints against private employers. As of mid January, he says, just 17 sexual-orientation cases had been filed in the state's history, although the total job-discrimination caseload runs between 110 and 150 a year.

The proportion of discrimination cases that involve sexual orientation is similar to that in other states: 3% in Rhode Island last year, 2.7% in Minnesota, 2.7% in Hawaii, 1.2% in Connecticut, and 0.7% in New Jersey. (Massachusetts and California were unable to supply statistics.) But Ware says the low numbers could be turned into a plus for ENDA: "In a way, the fact that there's not a huge caseload is an argument for the bill in some people's eyes, because there's not going to be a huge expenditure to enforce it." And that exact argument is being made, says Winnie Stachelberg, legislative director for the Human Rights Campaign. "We have used the state laws and the experience of those states," she says, "to demonstrate that litigation has not increased."

However, the low number of cases might also indicate that taking advantage of the laws is challenging. When a complaint is filed, its chances of success depend on the evidence backing it up. And that can be hard to find. "Most cases of discrimination are subtle--you feel as though you didn't get a raise or didn't get a promotion because of a person's bias. But that's hard to prove," says Leslie J. Brett, former chairwoman of the Connecticut Commission on Human Rights and Opportunities. What is needed in discrimination cases is strong circumstantial or direct evidence, according to Jon Davidson, supervising attorney with the Lambda Legal Defense and Education Fund office in Los Angeles. Or as he puts it: "Someone who has had a slew of good reviews ... then the day after a person tells the boss that the person is gay or has AIDS or is Jewish, the person is demoted or fired."

As an example, Davidson offers a high-level executive at Shell Oil who was fired in 1985 after copying invitations to a safe-sex party on the office copying machine. (The company says he was fired for personal use of the copier.) In 1991 Shell was ordered to pay $5.3 million to the man, Davidson says. Another was a California Highway Patrol officer who won more than $500,000 after complaining of harassment from the people he supervised. In a case cited recently in The New York Times, a former employee of the New York Stock Exchange won the right to sue for the harassment and firing he says he suffered after he told a supervisor he is gay.

But people who try to extend the law to cover issues beyond demotion, harassment, and firing often face tremendous odds. In Wisconsin and New Jersey, courts have rejected claims that the denial of health benefits to same-sex partners constitutes antigay discrimination. "The law is completely meaningless, as far as I'm concerned, with respect to an important area of employment," says James D. Anderson, associate dean in the School of Communication, Information, and Library Studies at Rutgers University and one of the five plaintiffs in the New Jersey case.

Even in prosecuting the most clear-cut cases, the effectiveness of antidiscrimination laws can be undermined when sexual-orientation complaints are handled differently from others. One example is California, which sends sexual-orientation cases to an agency separate from the one that deals with other types of discrimination complaints. Davidson says, "There have been problems with having that separate law that I think have also led to fewer claims being filed," he says. "We have gotten reports of people (who handle cases) not really understanding discrimination issues."

Other examples are in Vermont, which has an untested religious exemption, and Connecticut, which, Brett says, denies gay complainants the right to go directly to court without first filing with the commission. As chairwoman of Connecticut's human rights commission from 1990 through 1993, Brett, a lesbian, oversaw the extension of that state's antidiscrimination law to lesbians and gay men. Some lessons from that experience might prove useful, she says, if the federal bill in Congress becomes law.

One involves the importance of sensitivity training. Connecticut's commission staff received "your basic couple of hours of homophobia training," Brett says, but it didn't always sink in. "In a few instances when people took cases to investigators, they felt treated nearly as hostilely as they did in their original complaint," Brett says. For instance, a lesbian who filed a sexual-harassment complaint was asked by an investigator how she could feel harassed by a man if she were a lesbian.

Few states keep statistics that show what proportion of sexual-orientation cases are resolved in the complainant's favor. One that does is Vermont; of the 17 cases filed there, five were dismissed as not proved, four were closed for "administrative reasons" unrelated to their merits, seven remain open, and just one resulted in a payment to the complainant, according to assistant attorney general Steinzor. Overall, he adds, one quarter to one third of discrimination cases result in a payment.

And in the end, the success rate of cases is only one measure of a law's value--and not necessarily the most important one, Brett says. "The law has flaws in it," she says of Connecticut's statute. But just having it on the books "makes a great emotional difference ... a big sigh of relief that says, `I'm protected by a law now.'"

RELATED ARTICLE: Supportive states

These are the nine states with nondiscrimination laws that cover sexual orientation in the workplace, along with the agency that enforces such laws and a number to file complaints

California

State Labor Commissioner [phone] on Sacramento; check for local offices statewide

Connecticut

Commission on Human Rights and Opportunities [phone]

Hawaii

Civil Rights Commission [phone]

Massachusetts

Commission Against Discrimination [phone]

Minnesota

Department of Human Rights [phone]

New Jersey

Division on Civil Rights (6.9) 292-4605 in Trenton; there are also offices in Atlantic City, Camden, Newark and Peterson.

Rhode Island

Commission for Human Rights [phone]

Vermont

Civil Rights Division of the Attorney General's Office [phone] (For private-company employee cases only); state-employee and nonemployment discrimination cases (such as housing or public accommodations) are handheld by the Human Rights Commission, [phone]

Wisconsin

Civil Rights Bureau [phone] in Madison; [phone] in Milwaukee

RELATED ARTICLE: Do gays use the laws?

While these states offer recourse for alleged discrimination, sexual-orientation complaints are only a small percentage of total cases filed yearly.

California       NA(*)
Connecticut      1.2%
Hawaii           2.7%
Massachusetts    NA(*)
MInnesota        2.7%
New Jersey       0.7%
Rhode Island     3.0%
Vermont          2.2%([dagger])
Wisconsin        2.5%([dagger])

(*) Not available

([dagger]) Rough estimate