Tag Archives | sexual orientation

Discrimination against transgendered = sex discrimination, per the EEOC

By on April 26, 2012 in Our Blog

Title VII does not include sexual orientation or identity in its list of protected categories (though many states and cities do).  However, courts are often pretty creative in finding ways to include such cases under the umbrella of sex discrimination.  A gay male who is treated in a discriminatory manner could have a claim for sex discrimination based on his failure to conform to gender stereotypes, for example.  In my trainings, I always counsel managers to think about gender discrimination in the broadest possible terms.  The EEOC issued a ruling this week explicitly holding that a transgendered individual who is discriminated against has a valid claim for sex discrimination under Title VII.  Employers should expect courts to follow suit.

If you don’t already have a policy in place that prohibits discrimination based on sexual orientation and gender identity, think about adding one.  It’s always better to be one step ahead of the courts, as opposed to one step behind.

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HR’s role in dealing with LGBT issues

By on February 27, 2012 in Our Blog

Last week I attended a presentation on the business case for LGBT inclusion.  LGBT (sometimes called GLBT) is shorthand for the gay community — specifically, lesbian, gay, bisexual, transgender.  It’s a significant part of the workforce.  While federal law does not (yet) protect sexual orientation, several states and even localities, including the city of Cleveland, do.  Courts often de facto protect employees from discrimination based on sexual orientation under the rubric of sex discrimination (i.e., the failure to conform to gender-based stereotypes).  But aside from the legal status of the LGBT community, there are compelling reasons for employers to take proactive steps to be inclusive.

Increased productivity is one reason to send the message that you welcome diversity in the workplace.  When employees feel they have to hide who they are at work, the productivity drain is enormous.  Think of all the energy going into the daily machinations that a gay employee will go through in trying to obscure the fact of his or her sexual orientation.  Try having a conversation about your weekend where you do not refer to the gender of the person you spent it with.  It’s taxing!  Another part of the “business case” is team productivity.  A recent California study found that when members of a team came “out,” the team was between 27%-35% more productive.  Increased employee engagement is yet another reason to strive for inclusion.  When employees feel free to be their authentic selves, they are more likely to forge bonds with co-workers and be truly engaged at work.  And, by sending a clear message that your organization cares about diversity and inclusion, you are likely to obtain business from the LGBT community.  It’s a growing segment with real market power, and they actively look to see which employers support their mission (simply to be free of workplace discrimination) and send their business there.

So what does being “inclusive” look like?  For starters,  make sure sexual orientation and gender identity are covered in your anti-discrimination and harassment policies.  Train all employees on respect in the workplace, with a focus on debunking stereotypes.  Take steps to make sure your commitment to diversity is clear to prospective employees and customers/clients.  Plexus, the Chamber of Commerce for the LGBT community, is a great resource for employers wanting to know more.

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“Haters gonna hate” and the death of DADT (don’t ask don’t tell)

By on September 21, 2011 in Our Blog

Yesterday, the Pentagon officially ended the two decades’ long prohibition on homosexuals serving openly in the military.  ”Don’t ask don’t tell” required homosexuals to hide their identities.  As long as no one knew, their jobs were secure.  But if a superior were to find out, they could be ousted in a heart beat.  Imagine if this was the rule applied to religion; it would seem completely outrageous.  Say I had to go to work every day and hide the fact that I’m Jewish.  Had to pretend to celebrate Christmas and go on an Easter egg hunt, just so I could keep my job.  Crazy, right?  In today’s world we are taught to value diversity, to be respectful to those who are different, and to uphold equality in the workplace.  Gay rights have not quite made the cut (depending on which state you live in), but the military’s cessation of its discriminatory policy was a huge step, for countless Americans who risk their lives for us civilians.

I read an interesting commentary about the end of DADT by Luke Visconti, founder and CEO of DiversityInc.  Visconti pushed for gay rights during his long military tenure, as he describes here.  He correctly notes that despite today’s milestone, “haters gonna hate.”  Too true.  People with discriminatory animus (against gays and whomever else they disapprove of) won’t change just because the law has.  But, employers should pay attention, not only as a legal matter, but because it’s good for business.  Visconti explains:

“It’s bad business to discriminate. It destroys productivity and brand image. I’m sorry, but there’s no free ride. You can’t get away with donating money to anti-gay people without damaging your brand; you can’t pass ordinances, laws and state constitutional amendments that limit gay rights and not expect progressive companies to shy away—and your best and brightest to not move out. LGBT rights are every bit civil rights, and as the ADA was a continuation of our nation’s civil-rights era, the long overdue death of DADT is another milestone toward justice.”

I think he hit the nail on the head.  So what’s a proactive employer to do?  Jump on the bandwagon, if you haven’t already.  Add sexual orientation to your policies.  Include it in your training.  And most of all, create and maintain a culture of respect in your workplace.

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Attempt to repeal “don’t ask don’t tell” fails, for now

By on December 10, 2010 in Our Blog

Yesterday, the bill that would have repealed the ban on gay and lesbian soldiers serving openly stalled in the United States Senate.  Senator Harry Reid called for a vote on a procedural issue that would have cleared the way for the bill’s passage, but despite a majority in favor (57 to 40), there was not a “supermajority” necessary to block the Republican’s filibuster of the bill.  What does this mean?  It is unlikely the ban will be repealed this year.  While a couple of senators floated the idea of bringing a stand-alone bill on don’t ask don’t tell — as opposed to it being part of a broader military bill — to the Senate floor before the year is out, the prospects of success are limited.  

What does this have to do with the workplace?  Expect tensions to continue to run high over the lack of legal protection for gays and lesbians, at least at the federal level.  I believe change is still in the air, but it is coming slowly, to be sure.  The proactive employer should still consider adding sexual orientation to their internal policies (even if in a state that does not afford its own protection).  Remember that many courts have extended anti-discrimination protection to homosexuals despite their exclusion as a “protected category” under Title VII, under the guise of sex discrimination (generally, discrimination based on sexual stereotypes).

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FMLA leave applies to same-sex parents

By on June 30, 2010 in Our Blog

On June 22, 2010, the Department of Labor issued an interpretation of of the definition of “son or daughter” under the FMLA.  The DOL gave the term “parent” an expansive view, going beyond legal or biological relationships.  Thus, any employee who assumes the role of caring for a child is a “parent” under the statute and as such is entitled to leave to care for that child.  Secretary of Labor Hilda Solis made the impact of the interpretation clear, stating “All families, including LGBT (lesbian-gay-bisexual-transgender) families, are protected by the FMLA.”

According to the DOL, if an employer has a question about an employee’s entitlement to parental leave under the FMLA, the employer may require documentation or a statement to the effect that a family relationship exists.  A brief written statement is enough to trigger FMLA protection.

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“Don’t ask don’t tell” military policy to be reviewed

By on February 2, 2010 in Our Blog

Defense Secretary Robert Gates is expected to announce the commencement of a year-long Pentagon study into how best to revise the “don’t ask don’t tell” policy concerning gay members of the military today before the Senate Armed Services Committee.  ”Don’t ask don’t tell” essentially provides that gay service members keep their sexual orientation to themselves.  If revealed, however inadvertently, they can be dismissed from the military.  This announcement represents a significant step towards President Obama’s stated goal of eliminating the policy largely considered to be anti-gay.  Gay rights’ activists are pleased with this development, while some high-ranking military officers have expressed concern about this decisive issue being raised.

Secretary Gates has indicated change should ensue slowly and carefully, as the lifting of the ban on openly gay military members would represent the biggest social change to the military since the 1948 executive order for the racial integration of military units.  Still, change is likely to occur, as the study is premised on the idea that lifting the “don’t ask don’t tell” policy can be accomplished without compromising the military’s capabilities.

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Fight over passage of the ENDA (Employment Non-Discrimination Act) delayed until 2010

By on December 15, 2009 in Our Blog

President Obama has indicated his clear support for the ENDA, which would ban discrimination based on sexual orientation and gender identity.  However, neither the House nor the Senate will take up the legislation until after the New Year.  This delay has upset some of the bill’s most vocal supporters.  The Human Rights Campaign and other LGBT rights groups recently issued a statement that “[p]assing basic job protections for lesbian, gay, bisexual and transgender people must happen now.”

Whether the bill will pass — and how quickly — seems to be an open question.  Many, including Representative Barney Frank, a chief sponsor of the bill, continue to be optimistic and expect the ENDA to become law in early 2010.  But others are concerned with the strong opposition from conservative members of the House and Senate, and anticipate it stands a good chance of ultimately defeating the passage of the ENDA.

For now, employers can either move ahead in adopting policies consistent with the ENDA, or else adopt a wait-and-see attitude towards any policy revisions.  (We recommend the former).  Employers should also check local and state laws to ensure their policies are up-to-date and compliant.  (See our prior blogs on this issue, 5.19.09, 10.1.09, and 12.2.09).

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City of Cleveland adds gender identity to its anti-discrimination laws

By on December 2, 2009 in Our Blog

On Monday, the City of Cleveland passed an ordinance protecting gender identity (e.g., transgendered individuals, or individuals who identify with a gender other than the one they were born as) from discrimination in employment and housing.  Sexual orientation is already a protected category under the City’s anti-discrimination laws.  The City Council voted unanimously in favor of the law, further cementing its growing image as one of tolerance.  (For example, the City has been awarded the opportunity to host the 2014 Gay Games, an international competition).

So what does this mean to employers in the City of Cleveland?  They should immediately update their EEO and anti-discrimination policies and handbook, as well as recruiting and hiring forms that contain any references to anti-discrimination policies.  For those outside the city borders, now is a good time to think about following suit on a voluntary basis.  Many expect that it won’t be long before gender identity and sexual orientation are federally protected categories too.  See Warren & Hays blog 10.1.09.

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Legislation prohibiting discrimination based on sexual orientation and gender identity inches forward

By on October 1, 2009 in Our Blog

On September 24, 2009, the House Education and Labor Committee held a hearing on the Employment Non-Discrimination Act (“ENDA”).  The most recent version of the ENDA was introduced in Congress in June.  The current version of the bill would prohibit discrimination based on sexual orientation and gender identity.  (See my prior posting on this issue in May).  Congressman Barney Frank opened the hearing urging the legislation’s passage, stating it would ensure “workers are judged solely on their work ethic and talents and not their sexual orientation and transgender status.”

The ENDA is considered highly controversial, and many on the right side of the political aisle are solidly against it.  But in making the case for its passage, EEOC Acting Chair Stuart Ishimaru explained that the ENDA would ease the burden on employers of complying with varying state laws.  Currently, 22 states prohibit discrimination on the basis of sexual orientation (and 12 have protections for gender identity”).  In addition to alleviating this patchwork of differing laws, passage of the ENDA would, according to Ishimaru, make a statement “of national policy that the federal government will not tolerate discrimination that is based on bias against individuals because of their sexual orientation and gender identity.”

It seems curious to me that there is still such vociferous opposition to extending the anti-discrimination laws to individuals based on sexual orientation and gender identity.  Regardless of the outcome of this legislative fight, employers who adopt policies consistent with the ENDA take an important step towards creating a respect-based workplace, which is always good for the bottom line.

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Transgendered Employees: The Next Protected Category?

By on May 19, 2009 in Our Blog

I predict that in fairly short order, sexual orientation, which is currently protected in several states but not in Ohio, will be a protected category under Title VII.  Consistent with his stated commitment to workers’ rights, President Obama is a staunch supported of the Employment Non-Discrimination Act (ENDA), which prohibits discrimination based on sexual orientation.  The ENDA passed in the House of Representatives last year.  An older version of the bill made it illegal for employers to discriminate on the basis of “gender identity,” and Obama supported that version too.

Though I think the odds are low that gender identity will be a federally protected category, courts are finding creative ways to protect transgendered employees under the rubric of sex discrimination, and have been for several years.  A 2005 Sixth Circuit case, for example, held that the City of Cincinnati engaged in sex discrimination when it failed to promote a transgendered male police officer who sometimes “acted like a woman” at work by wearing makeup.  Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).

Employers should be thinking ahead in terms of revising policies and educating their supervisors. Keep in mind that an employer is always free to adopt a more employee-friendly policy than the law requires.

 

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