Bias Bill Raises Concern About Gender Identity

At first blush, it seemed that big business was lending support to a bill that would prohibit workplace discrimination against gay, lesbian, bisexual and transgender people. Forty-six large companies, including such corporations as Cisco Systems, Coca-Cola, Marriott International, BP America and NCR, are backing the bill, and along with the vast majority of the Fortune 500, they already have inclusive employment practices in place.

But during a House hearing on the legislation in early September, the first business community opposition started to emerge. Employment lawyers raised concerns that it would create a new protected class for gender identity.

Mark Fahleson, an employment lawyer with the firm of Rembolt Ludtke in Lincoln, Nebraska, asserted that the definition was vague and too broad, allowing employees to declare a change in their gender identity at will—without giving the employer advance notice to prepare for such a change in the workplace. The bill requires that companies provide shower or dressing facilities to accommodate actual or perceived gender.

Even though most major employers welcome homosexuals, they are doing so through voluntary policies. A statute would codify a particular approach for companies to follow—and would burden small firms that don’t have the HR and legal staffs to manage compliance, according to Fahleson.

“This would put into law definitions and procedures and remedial schemes that include litigation,” Fahleson says after the hearing.

The measure has not been scheduled for further action by the House Education and Labor Committee. The bill also falls under the jurisdictions of the three other committees.

As it winds its way through Congress, advocates stress that the measure simply extends to homosexuals the same protections that have been put in place for women, minorities and ethnic groups the past 40 years. Currently, an employee can be fired for sexual orientation in 31 states and for gender identity in 39.

Rep. Robert Andrews, D-New Jersey and a member of the Education and Labor Committee, says the bill will ensure that people are judged solely on their ability on the job. That creates an atmosphere in which the best talent can be utilized to achieve business results.

“This bill is a moral imperative,” Andrews said during the hearing. “But it’s more than a moral imperative. It’s an economic imperative.”

Food giant General Mills made the same point in testimony before Andrews’ subcommittee.

“A culture of respect and inclusiveness is important for retaining top talent and recruiting new stars,” said Kelly Baker, vice president for diversity at the company.

General Mills doesn’t try to calculate a numeric return on investment for its programs.

“We don’t talk about diversity in those terms,” Baker said in an interview. “We believe fundamentally that diversity drives creativity and innovation and links to our success.”

Similarly, the company is not supporting the anti-discrimination bill as a way directly to improve its bottom line. Rather, it takes an altruistic, perhaps even patriotic, approach.

“It’s the right thing to do for American citizens,” Baker says.

But several Republicans, while denouncing workplace discrimination, expressed doubts about the bill.

“Would it create unnecessary burdens on employers and employees or open the door to frivolous litigation?” asked Rep. John Kline, R-Minnesota, at the hearing.

“Numerous laws have already been enacted at the state and federal level to prevent discriminatory employment practices,” he says.

—Mark Schoeff Jr.