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Avoiding Sexual-Orientation Discrimination

February 28, 2001
Sexual orientation discrimination isprohibited by many states as part of their employment discrimination laws.However, most employers don't think it will become an issue in their workplace.As a result, many don't have policies in place. Therefore, when an allegationdoes surface, the employer is ill prepared and more likely to be at adisadvantage if the case goes to court.

"Prejudice andhomophobia too often manifest themselves in the workplace in the form ofdiscrimination or harassment, and in more subtle ways as well," say theHuman Rights Campaign, which maintains the largest full-time lobbying team inthe nation devoted to issues of fairness for lesbian and gay Americans."These forces present significant challenges for employees deciding whetherto reveal their sexual orientation and for managers trying to create a climatethat promotes understanding and productivity."

The bottom line foremployers sounds a lot like something from the book "Everything I Needed toKnow I Learned in Kindergarten": Treat everyone the same.

Which means, just asyou cannot ask candidates about their marital status or plans to start a family,you also can't ask whether they prefer relationships with men or women.Likewise, once someone is on your payroll and you learn that he or she is gay,you cannot treat him or her differently because of it.

For example, Ipresently represent two lesbians who filed a case against their school board.The case stems from the involuntary transfer of these two gay teachers, whoclaim that the decision was based on their sexual orientation. They were accusedof causing disruption to the workplace as a result of an incident instigated byanother school employee that occurred after school hours, off- campus. These twoteachers claim that by contrast, a heterosexual couple, also employed by thesame school board, was notorious for having arguments in the hallways duringschool hours, but they were never disciplined.

Here's anotherexample from the American Civil Liberties Union Web site: "In her firstfour years as a reporter for a Los Angeles weekly newspaper, Cynthia Frazierreceived glowing reviews, won numerous awards for her writing, and quicklyadvanced from news editor and writer to associate editor. But after hersupervisor noticed vacation photos on Frazier's desk of her and her partnerhugging, the atmosphere changed. Frazier was constantly harassed and reprimandedat work and eventually fired for insubordination. Frazier filed suit in 1994arguing she had been fired for being gay. The case is now on appeal."

Employers who wantto avoid sexual orientation discrimination claims can take the following stepsto protect themselves from sexual orientation discrimination claims:

  • Publish and publicize a formalgrievance process. Make sure there is a formal process in place foremployees to air claims of harassment or sexual orientation discrimination.Outline this process in writing and notify every employee of the policy.

  • Take every complaint seriously.Conduct a thorough investigation and document your findings. Even though theburden of proof rests with the complaintant to prove that he or she has beendiscriminated against, it's in your best interest to address the claimpromptly. Be proactive, not reactive.

  • Remain detached. Despite our bestefforts to eliminate them, there's no denying that our personal biases playa part in our decision making and reactions. While we can't eliminate ourbiases completely, we can identify them and detach from them. If you areuncertain of your ability to do so, consult a legal advisor regarding thecourse of action you are considering, or bring in a witness when you discussthe situation with the employee.

  • Prune the grapevine. Let's face it,people talk. Even if an employee does not come to you with a complaint, ifyou get wind of a discriminatory act through the office grapevine, use it asan opportunity to remind everyone about company policy against sexualorientation discrimination and the options available to those who feel theyare being treated unfairly. In other words, attend to the sparks before theyignite.

  • Paper the file. I cannot stress thisenough. Just as documentation is critical for an employer who is facing aclaim of sexual orientation discrimination, it is equally important for theemployee who is making the claim. You need evidence that points to aspecific person. This physical evidence can take the form of witnesses,copies of emails, phone bills, etc. Document every word said and actiontaken, at the time it occurs, and keep copies in the company file as well asthe individual's personnel file. Many people make the mistake of not doingso by claiming they don't have the time or they'll get to it later. Latermay be much too late. It's difficult after the fact to recall eventsaccurately and many cases are lost because it becomes a game of "hesaid, she said."

    When you're in the middle of adiscrimination dispute, emotions run high. You may feel anger toward theemployee who brought the claim and that anger can interfere with yourability to recall events accurately. You don't want to respond to a claimout of anger. That's why it's worth the time it takes to document events asthey occur, before the situation escalates.

When the lawprohibiting sexual harassment in the workplace was first enacted, it seemed asif everyone was filing a case. We're at the tail end of that initial flurry.Enough people out there brought actions against employers that sexual harassmentis more clearly defined and boundaries have been established. I look for thesame cycle to occur in regard to sexual orientation discrimination. As more ofthese cases are heard, and won, the more homosexuals will have the courage tocome forward with their own stories.

Although litigationof sexual orientation discrimination may still be in its infancy stage, the factthat same sex adoptions have been recently approved bodes well for acceptance ofalternative lifestyles in the future. The law is concerned with fairness, notpersonal convictions. Regardless of whether or not you approve of someone else'schoices, we need to be more open to diversity in life.

While federal lawprovides basic legal protection against employment discrimination on the basisof race, gender, religion, national origin, or disability, it currently does notextend to sexual orientation. The proposed Employment Non-Discrimination Act (ENDA)would prohibit discrimination on the basis of sexual orientation. For a listingof states that prohibit discrimination of the basis of sexual orientation, visitthe Human Rights Campaign Website.