In Conversation with Lee Badgett

Data on LBBTQ+ workers from Badgett’s research on filings at the US Equal Employment Opportunity Commission

train: I also want to dig specifically into one of your research projects, partly because I saw you present it at an IAFFE conference several years ago. I’m referring to your research project using the data from filings with the US Equal Employment Opportunity Commission. Can you describe the process of getting these data and what you found with them?

Badgett: Openness at the EEOC to working with academics comes and goes. For a while, there was a great period of openness to get access to the data they collect on employers about the race and gender composition of their workforces via EEOC surveys. But to get access to the charge data about individual people who walking in the door filing charges against their employers was difficult. I basically had to become a federal government employee. This happens through the Intergovernmental Personnel Act process, which enables college and university personnel [among others] like me to be seconded to the EEOC from UMass Amherst. This process gave me an official way to access their data.

Alas, access to these charge data has more or less come to a halt over the past few years. The Equal Employment Opportunity Commission was going through some administrative changes to upgrade their safety and privacy of their data systems, and also had some changes in personnel. We did produce some papers based on those charge data, but we still have more that we want to do that we’ve been basically prevented from doing.

The EEOC data is important data. The data show that affirmative action is a very important tool for fighting discrimination. Studies that have been done in the past using EEOC data document the types of discrimination that LGBTQ+ people experience. The agency itself was on the forefront of getting LGBTQ+ people covered by the Civil Rights Act of 1964, which outlawed discrimination on the basis of sex and race and some other categories, by concluding that sex discrimination includes discrimination against people who are LGBTQ+ because of their sexual orientation and gender identity.

And so, the Equal Employment Opportunity Commission, in 2013, started allowing LGBTQ+ people to file charges against their employers anywhere in the country, not just in the states that have laws that specifically prohibited that kind of treatment. And then, in 2020, the US Supreme Court affirmed that position in its Bostock v. Clayton County, Georgia decision. Today, it’s very clear that LGBTQ+ people are protected against sexual orientation and gender identity discrimination everywhere in the United States.

As part of our EEOC data research project, we asked them for data on charges filed by employees with the agency since 2013. We also matched up the charges data to data on companies’ workforce composition, industry, and contractor status, so that we could evaluate the effects of another policy in the Obama years. President [Barack] Obama in 2014 said that he was adding sexual orientation and gender identity to the list of characteristics that federal contractors were not allowed to use in employment decisions. That was a really big deal because a lot of companies are federal contractors and so that workforce is huge.

We wanted to see whether it mattered in terms of fighting discrimination based on sexual orientation and gender identity. What we found was that it did seem to matter for boosting the number of charges filed by employees, but it seemed to matter everywhere, not just in places that didn’t have protections for LGBTQ+ people before the 2020 Bostock decision by the Supreme Court.

This increase in charges everywhere might or might not have been connected to the 2014 executive order, but there was another thing that was definitely connected to that executive order. The Equal Employment Opportunity Commission will investigate charges or try to mediate charges in order to resolve them for employees filing charges against their employers. And then, at the end of the charge, the agency at the end of the investigation will record whether the person who had filed it got anything out of it. Did the employee get a change in employment practices by the employer? Did the person get rehired? Was there a financial settlement?

We found that there appears to be less discrimination in the places that had not previously been covered by nondiscrimination policy. Federal contractors in those places were less likely to have charges that resulted in changes for employees filing charges, suggesting there was less discrimination. So, it looked like there was a good effect of the Obama executive order among federal contractors. And we also tried to expand that understanding by adding in some other questions about what it looks like when you create these new categories of discrimination. I was working with some sociologists on this project, and they were very interested in what they call legal consciousness, or how people think about the rights that they have. We’re still working on that, though very slowly now because of the data problems.

train: That’s super interesting. Sometimes policy can be a leading force for the type of cultural change that people need to feel they can file claims. If you have the policy first, then sometimes the cultural change can follow. I’ve also seen research that finds when it becomes easier for individuals to file a charge claim, the probability of finding that the claim had merit decreases. This is a little bit counterintuitive because even though employees are less likely to have a finding in your favor, there is evidence that they are better able to file a claim, either because of their own comfort level or a decreased fear of retaliation by an employer for an employee filing a claim.

Badgett: Yes, that’s right. Does the law lead, or does it follow? In the marriage equality era, I was very involved in a lot of the court cases in which there had to be enough movement in judges’ attitudes to get the courts to budget and move in those directions. And since then, we’ve continued to see a pretty steady uptick in the approval of giving same-sex couples the right to marry. So, changes in the law continue to change the attitudes of people. I’ve had some colleagues who’ve done some careful studies of attitudinal change after a lot of the innovations in gay rights over the years, including in some other countries, who have found something fairly similar happening.

train: Yes. I was thinking of [University of Exeter economist] Dario Sansone’s work on marriage equality and on US labor market discrimination. There’s a cultural shift, then there’s a legal shift, and there’s a cultural shift.

Badgett: Yes, they reinforce each other. One of my colleagues at UMass Amherst, sociologist Don Tomaskovic-Devey, who studies the EEOC and discrimination, argues that social movements also need to be active to make those laws work. Activism makes sure that there’s still a fire lit under the government agencies that enforce them and helps make sure Congress is funding that hard work. All of those pieces are enhanced by having that activism at the same time.

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