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The Gay Decade Not at Work

September 3, 2004

Will & Grace. The Ellen DeGeneres Show. Queer Eye for the Straight Guy. If you believe the press, this is "the gay decade." Renegade mayors from San Francisco to New Paltz, New York, have performed same-sex weddings and made national headlines. And in May, Massachusetts became the first state in the nation to legally recognize marriages between members of the same gender.

    Judging by the reports in the mainstream media, it would appear that gay marriage is the last frontier in the civil-rights movement for America’s tens of millions of gays and lesbians. The reality, however, is somewhat more surprising. Currently, only 14 states and the District of Columbia have broad prohibitions on private-sector workplace discrimination based on sexual orientation. Grouped in the north (Minnesota and Wisconsin), northeast (Connecticut, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont) and southwest (California, Nevada, New Mexico and Hawaii), these states represent the only safe havens for gay, lesbian and bisexual job applicants and employees, who otherwise throughout most of the country may be lawfully denied work, ostracized, harassed or terminated solely because of their sexual orientation.

    This limited legal protection is somewhat surprising, and certainly at odds with the media hype and purported public sentiment. According to a 2003 Gallup study referenced in the Congressional Record, 88 percent of Americans believe that gays and lesbians should have equal rights in the workplace. Moreover, corporate America, whether as a result of enlightened human resources management, recognition of the tremendous buying power of gay and lesbian consumers, or the hope of recruiting and retaining a necessary segment of the workforce, has embraced the concept of nondiscrimination. More than 60 percent of the Fortune 500 report that their nondiscrimination policies extend to prohibiting harassment and discrimination based on sexual orientation.

    Notwithstanding this apparent belief that having gays and lesbians in the workplace is a non-issue, the prospects for a national law extending them equal rights in the workplace appear slim. Although a bill has been introduced in this session of the U.S. Congress to prohibit workplace discrimination based on sexual orientation, the Employment Nondiscrimination Act of 2003, like similar bills introduced and defeated in previous years, is not expected to pass.

    Given the lack of a uniform federal law, employers can expect the divide in state laws to widen. Indeed, of the 14 states that prohibit discrimination against gays and lesbians, four (California, Minnesota, New Mexico and Rhode Island) have extended protections further to protect "gender identity." The California law, the most recent of these to be enacted and surely the least clearly drafted, appears to prohibit discrimination against transsexuals, transvestites and "persons with traits not stereotypically associated with their gender." These traits may include personality, clothing, hairstyle, speech, mannerisms and demeanor, and secondary sex characteristics such as vocal pitch, facial hair and body size or shape. Thus, the new California law protects not only transgender individuals but also men who are "perceived" as being too "feminine" and women who are "perceived" as being too "masculine."

    Unlike the prohibition on discrimination proposed in the Nondiscrimination Act of 2003, which would not protect cross-dressing in the workplace, the gender-identity laws enacted in California, Minnesota, New Mexico and Rhode Island present unique challenges to employers and possibly socially uncomfortable situations for coworkers. For example, these laws raise legitimate concerns regarding the enforcement of dress codes and the use of traditionally single-sex facilities such as washrooms.

    While these laws generally allow for the enforcement of unisex uniform policies and grooming standards, employers may not apply different standards for men and women. For example, a policy prohibiting the wearing of eye makeup should be lawful if it is enforced in a nondiscriminatory manner, but if an employer does not generally prohibit the wearing of eye makeup, it cannot prohibit a male employee from doing so. Similarly, while an employer should also be able to prohibit, in a nondiscriminatory manner, provocative, outlandish or flamboyant dress in the workplace, it is clear that regardless of the employer’s or its customers’ personal tastes or preferences, cross-dressing itself may not be prohibited.

    More difficult, employers with operations in the four states with gender-identity protections should be prepared to address the difficult issues that may arise with respect to granting transgender employees access to such traditionally single-sex facilities as restrooms and locker rooms. For example, in Minnesota, both transgender employees who have been denied access to the restroom of their choosing and non-transgender employees who have objected to granting transgender employees access to the restroom of their choosing have sued for employment discrimination. Unless private single-occupancy restrooms or changing rooms happen to be available in the workplace, employers that confront this issue will have to come up with creative and practical solutions that address the privacy and civil rights of both transgender and non-transgender employees.

    Similarly, both Title VII and most state anti-discrimination laws recognize a limited bona fide occupational qualification defense, permitting employers to consider a person’s gender when filling certain jobs that directly raise privacy concerns for customers or other third parties, such as restroom and locker-room attendants. However, it is unclear whether a similar BFOQ defense will be recognized with respect to transgender applicants or employees in the states that have extended equal-rights protections to them.

    While some employers may believe that states like California have pushed the envelope too far in extending civil-rights protection to cross-dressing, the lack of a uniform federal law such as the Employment Nondiscrimination Act means that gay and lesbian job applicants and employees in most states are denied the basic civil rights accorded to heterosexuals. While many Americans enjoy the lifestyle and grooming tips of Queer Eye’s "Fab Five" and Ellen’s warm, folksy chats with her celebrity guests, isn’t it time for them to also enjoy a workplace where every citizen, including gay Will and straight Grace, is protected from discrimination?

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management
, September 2004, p. 12 -- Subscribe Now!