ROBERT SIEGEL, HOST:
In many of the states where same-sex marriage is now legal, it is also legal to fire someone for being gay. But federal and state officials are trying to change that. As Miles Bryan of Wyoming Public Radio reports, they're using long-standing civil rights law.
MILES BRYAN, BYLINE: Josh Rasner was the only openly gay person in his office while he worked for a food service company in Casper, Wyoming. But he says that never held him back.
JOSH RASNER: I had filled every position from general manager to executive chef. You name it, I'd done all of it.
BRYAN: That changed in the summer of 2012, when Rasner got a new manager. A few weeks after he arrived, the manager went through Rasner's personal phone and found pictures of a male gymnast. The manager discussed the pictures with another female employee, who later told Rasner about it.
RASNER: The manager said to her, you know, he has this picture of a guy on his phone. And if you, as a woman, had this picture on your phone, it would've been OK. But Josh is a guy. That's just - we can't have that.
BRYAN: Pretty soon after that, Rasner was let go by the company. He tried to file a discrimination complaint. But Wyoming is one of 29 states that doesn't ban employment discrimination on the basis of sexual orientation. The laws haven't changed since then. But today, Rasner might have a case. And it's all because of the conversation between the manager and that female employee.
CHERIE DOAK: Clearly he is objecting to the individual's nonconformist with gender stereotypes in that men should only like women, or only have pictures of women on their phone, and only women can have pictures of men on their phone.
BRYAN: Cherie Doak works in Wyoming's labor standards department. She says that conversation is good evidence of what's known in court as gender stereotyping. That's the tool that Doak and her counterparts across the country have recently begun to use to help LGBT people in states without antidiscrimination laws that include sexual orientation. Doak says it works about half the time.
DOAK: If all the employer said was, we don't want gay people working here, it's going to be way more different. It's a war of syntax, really.
BRYAN: This war dates back to a 1989 Supreme Court case where a female lawyer was denied a promotion at her firm because she didn't wear the makeup and high heels her bosses wanted to see. She argued this was a form of sex discrimination outlawed by the 1964 Civil Rights Act. Chris Kuczynski is with the Federal Equal Employment Opportunity Commission, or EEOC.[POST-BROADCAST CORRECTION: In the audio of this story, we refer to the plaintiff in the 1989 Price Waterhouse v. Hopkins case as a lawyer. She was actually a manager in an accounting firm.]
CHRIS KUCZYNSKI: That is the case that said that sex discrimination can be shown by evidence of gender stereotyping.
BRYAN: Between that 1989 case and a couple of years ago, gender stereotyping was almost exclusively used in cases involving women. But more recently, Kuczynski says the EEOC has started reinterpreting that case to say that discrimination against LGBT people is a form of gender stereotyping.
KUCZYNSKI: What we're doing is interpreting the statute consistent with well-established principles.
RAE VANN: The EEOC here is basically imposing an obligation, regardless of what Congress had said.
BRYAN: Rae Vann is with the Equal Employment Advisory Council, a group that helps businesses craft their workplace discrimination policies. She says that those businesses spent a lot of time and money keeping their policies up to date with what's required. So when the EEOC says sex discrimination covers LGBT people even though that hasn't been approved by Congress or the Supreme Court, it makes them nervous.
VANN: We'd much prefer for Congress to say, in fact, this is what the law provides, prescribes, prohibits and so forth.
BRYAN: Last year, the U.S. Senate did pass a bill that would ban discrimination on the basis of sexual orientation. But the Employment Nondiscrimination Act is stalled in the House. In the meantime, the EEOC has aided over 1,200 LGBT people in bringing employment discrimination claims since 2013. For NPR News, I'm Miles Bryan in Laramie.
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