Workplace Discrimination: Sexual Orientation
- Bruce Mirken
- Posted March 11, 2013
Summer was starting and Robin Shahar had it made. She'd graduated sixth in her class at Emory Law School and was getting ready to start a new job as a staff attorney at the legal office where she'd worked as a law clerk the previous summer. And she was in love and preparing to solemnify her commitment in a Jewish ceremony that July.
But Shahar's love was a woman, and when her new employer found out about her plans, he withdrew the job offer. He wrote that he was doing so specifically because of the "purported marriage between you and another woman," explaining that "inaction on my part would constitute tacit approval of this purported marriage and jeopardize the proper functioning of this office."
Shahar wanted to fight, but she faced an uphill battle: She lived in Georgia, one of 30 states with no law protecting gays and lesbians from employment discrimination. Even more daunting, her prospective employer was Michael Bowers, Georgia's Attorney General at the time.
Discrimination can be subtle
There's been relatively little research on workplace discrimination against gays. But in a review of academic research and surveys by gay and lesbian organizations, researcher W.V. Lee Badgett, a labor economist at the University of Massachusetts at Amherst, found that one-quarter to two-thirds of lesbian, gay, and bisexual people have lost jobs or been denied promotions because of their sexual orientation. Reviewing studies that compare the incomes of gay and heterosexual workers with the same qualifications, she found that the gay workers often earned less.
As with other forms of discrimination, unequal treatment based on sexual orientation can take many forms. Sometimes it's explicit, as in Shahar's case, but often it's much more subtle, such as promotions that mysteriously go to less-qualified employees or a constant barrage of insults and antigay jokes that create a hostile, threatening atmosphere.
To those who haven't experienced it, such harassment may not seem like a big deal, says Matt Coles, director of the American Civil Liberties Union's Lesbian and Gay Rights Project. But Coles notes that "for most people, work is a central part of their lives." Harassment, he says, can leave employees "totally alienated from their co-workers and coming to feel that their co-workers are enemies... It [induces] incredible emotional turmoil."
Gay and lesbian workers may face another type of discrimination that is even more subtle, one that heterosexuals often don't understand: pressure to stay in the closet. "In some workplaces it is widely understood that if you wish to keep your job, you must keep who you are and who your family is completely secret," Coles says. Even when not directed at a specific employee, jokes, casual remarks, and numerous other signals can send an unmistakable message that gays and lesbians are unwelcome.
Part of the battle is getting people to realize there's a problem. Coles recalls appearing on a New York radio talk show whose host asked, "What's the big deal? Why do you people want to shout out about your sex lives?"
"I don't," Coles answered. "I just want to live like everyone else." Heterosexuals regularly display pictures of their families in their workspaces and make small talk about their husbands, wives, boyfriends, or girlfriends, and no one thinks twice about it. Straight people rarely hesitate about getting calls from their spouses at work. But for a gay employee this sort of normal interaction may bring a pang of terror. "Trying to root your family out of your life every minute of every day is incredibly difficult and damaging," says Coles.
Appearing gay can lead to bias
Even when gay and lesbian employees feel safe being out of the closet and are hired and promoted fairly, they can suffer another form of unequal treatment: Because they usually cannot legally marry their partners, benefit plans that cover employees' spouses often leave gay workers' partners out in the cold. The value of benefits such as health and dental insurance can add up to several thousand dollars a year, so when companies don't provide coverage for gay employees' domestic partners, those workers are in effect being paid less than a married co-worker making the same salary.
That is slowly changing. According to the Human Rights Campaign, the nation's largest lesbian and gay lobbying group, as of 2008, 9,375 employers -- including 286 Fortune 500 companies -- provided benefits for domestic partners, an increase of almost 24 percent over 2003 figures.
But even when benefits are available, fear of antigay bias may keep workers from using them. The Big Three automakers instituted domestic partner benefits in 2000, notes Cindy Clardy of Ford's gay and lesbian employee group -- but so far, relatively few autoworkers feel comfortable using them. "It would take a good deal of courage for a closeted hourly employee to go to their local HR office and ask for the phone number to call to get the enrollment kit," Clardy says.
Sometimes an employee experiences discrimination simply because supervisors or co-workers believe he or she is gay. Where laws bar antigay discrimination, even discrimination based on false assumptions should be illegal, says Lambda Legal Defense and Education Fund staff attorney Myron Quon: "It shouldn't matter whether you are what they think you are." But in many places, courts have yet to rule on such cases, he notes, leaving uncertainty as to how laws will be applied.
A related issue is discrimination based on gender identity. Transgendered people -- those whose sense of maleness or femaleness doesn't match their physical body -- often face even more discrimination than gay men and lesbians. Among those who consider themselves transgendered are cross-dressers and pre- or post-operative transsexuals. Although relatively few jurisdictions specifically bar discrimination against transgendered people, those whose appearance or mannerisms differ from what is expected for their gender have sought protection under other laws. "You can make a privacy argument, you can make a sex discrimination argument, you can make a sexual orientation discrimination argument [since such individuals are often perceived to be gay]," Quon explains, but the legal issues remain largely unsettled.
In October 2000, New Orleans truck driver Peter Oiler filed suit against his former employer under federal sex discrimination laws. Oiler, a married heterosexual, was fired for dressing in women's clothing off the job. In 2003, Oiler dropped his lawsuit after a U.S. District Court judge ruled against him, saying his claims did not fall under federal statutes outlawing sex discrimination or a Supreme Court case banning sex stereotyping in the workplace.
What to do if you've been discriminated against
Perhaps surprisingly for an attorney who specializes in litigating discrimination cases, Coles doesn't always advocate fighting. Because of the stress and turmoil often involved, he says, "sometimes it's better to just walk away." In any case, he suggests that those who think they've been mistreated follow a careful, methodical approach.
First, Coles says, do a "reality check." Talk over what happened with a friend, co-worker or family member. When you're part of a minority, he notes, "it's absolutely normal" to suspect discrimination, even when there may be an innocent explanation.
Second, find out what protections you have. Learn your state's law, but don't stop there: over 200 cities and counties have ordinances barring antigay workplace discrimination. In addition, many private employers and government agencies have policies forbidding discrimination based on sexual orientation.
A good place to start is your nearest gay and lesbian community organization. (A good list of these, along with many other resources, can be found on the Human Rights Campaign Web site, www.hrc.org/worknet.) Lambda (www.lambdalegal.org) or your local chapter of the ACLU (www.aclu.org) can also help. If you are a union member, talk to your shop steward, local union office, or, if necessary, your union's national office. These organizations can refer you to a knowledgeable attorney -- and good legal advice is crucial, Coles says.
Document your case. "Save any piece of piece of paper that anyone in your company gives you that has any bearing on your claim," Coles says, along with evaluations or other documents dealing with your job performance. Make notes of acts or events that appear discriminatory, but just enough to jog your memory. Avoid the temptation to editorialize or get emotional in your notes.
But no matter how careful you are, if there isn't a law specifically protecting you, expect an uphill fight. Robin Shahar, with help from the ACLU, battled her firing in court for nearly seven years. She finally lost when the U.S. Supreme Court refused to hear her case in January, 1998, and Shahar took a job with the city of Atlanta.
Still the tide is slowly turning. "At the beginning of the 1990s there were only two states in the nation that had laws prohibiting sexual orientation discrimination," says Coles. Now there are 20. "Things are moving forward at an accelerating pace."
Human Rights Campaign. Domestic Partner Benefits. February 2009. http://www.hrc.org/issues/domestic_partner_benefits.htm
National Gay and Lesbian Task Force. State Non-Discrimination Laws in the US. January 2008. http://www.thetaskforce.org
National Gay and Lesbian Task Force http://www.ngltf.org
Information on a variety of gay and lesbian civil rights issues around the U.S.
Ford GLOBE http://www.fordGLOBE.org
The gay, lesbian and bisexual employee group at Ford Motor Company. The site includes a thorough bibliography or literature on gay and lesbian workplace issues.
Sexual Orientation and Career Decision Making, Lawrence University. 2001. http://www.lawrence.edu/dept/student_dean/career/GLBT.shtml
Addressing Sexual Orientation Discrimination in Federal Civilian Employment, http://www.opm.gov/er/address2/guide01.asp
Gender Public Advocacy Coalition. Peter Oiler Ends Court Fight. January 2003. http://www.genderadvocates.org/News/Oiler%20ends%20fight.html