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WorkNet Achieving a Non-Discrimination Policy that Includes Sexual Orientation Many U.S. employers have written non-discrimination or equal employment opportunity policies that prohibit discrimination on the basis of race, sex, color, religion, national origin, age, disability and other categories. Although thousands of U.S. employers have also included sexual orientation in their policies, thousands have not. This document suggests a number of actions that you should take to begin working within your company’s leadership structure to secure the changes you seek. It also addresses how to make a solid business case and anticipate some common pitfalls. While some portions of this tool are geared toward employees in corporate America, the arguments and resources can be adapted to the public sector, non-profits and college campuses, too. Convincing your employer to add sexual orientation to its non-discrimination policy may require time and commitment (and some measure of courage). Individual employees can make a difference in how their employer treats gay, lesbian, bisexual and transgender workers. I. The Steps to Success Step 1: Assessing your workplace •
Get a copy of your employer’s non-discrimination or EEO policy, anti-harassment policies and any other documents you can find where your employer voices a commitment to diversity. Check the annual report, public statements from the CEO or other top executives, and the mission and/or vision statements. Review each for inconsistencies and arguments that may support your case. “Shell Oil Co. has a statement of core values that addresses trust and belief in its people. This language helped us frame our arguments,” said Rick Schroder, a diversity advisor with Shell Oil Co.
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Find out what the law is in your state, county and/or town – and the jurisdictions where your company is headquartered or has major operations. You can use HRC’s searchable database www.hrc.org/employersearch to find this out. In most cases, you will find the law does not cover sexual orientation.
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Assess the climate for gay and lesbian employees in your workplace. Is it overtly hostile? Or are openly gay people accepted and respected? Are there openly lesbian or gay people in senior management? Has there ever been a case of anti-gay harassment? If so, how did management handle it? This is an important gauge in determining how your request will be perceived and how much education you will need to do. “You
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have to realize that there are going to be people along the way who will be working from stereotypes,” Schroder says. “I made a conscious effort to be a positive role model and much of what I did was associated with influencing others by providing the knowledge.” •
Perhaps you feel that your employer doesn’t understand this issue, but may be open to learning more. If your company has diversity training, maybe your human resources department would be willing to include a segment on sexual orientation and gender identity. Try referring them to diversity trainers with expertise in this area. You might also give managers a copy of HRC’s annual state of the workplace report, which provides a good overview of how other corporations are dealing with these issues.
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If there is a gay network or an official GLBT employee resource group at your workplace, meet with the members to discuss your plans. Make sure you are all working together on this project and that your messages are in sync. Establish a point person or people (but keep this number to a minimum) who will take the lead and be the chief point of contact for management on this issue.
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Are you or your coworkers covered under a collective bargaining agreement? If so, you should explore the role of unions in negotiating equal protection.
Step 2: Understand Your Company’s Businesses •
Make a list of your company’s competitors, contractors and suppliers and find out which already include sexual orientation and/or gender identity in their non-discrimination policies. Check HRC’s online database on www.hrc.org/employersearch. Don’t forget to find out if your employer has any government contracts with jurisdictions that already prohibit discrimination based on sexual orientation and/or gender identity.
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Make sure you know what’s happening in your company. Is your employer experiencing a problem with employee turnover? If so, you might focus your argument on how an inclusive policy can improve retention. Is your company having trouble recruiting new employees? Is it looking for new marketing opportunities? If so, focus your arguments in those areas.
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Are there any internal problems that could be impediments? Are you in the midst of layoffs? Is the board of directors in upheaval? Are you anticipating a change in company leadership? This information may prove useful in directing your arguments to the people who can make the difference.
Step 3: Identifying allies and adversaries •
Understand your company’s decision-making process and structure. Who in management will be supportive? Who will not? Who is in charge of your employer’s equal opportunity compliance? How is diversity integrated into the company? Who will need to sign off of the new policy? Whom can you leverage to influence the decision-making process?
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It’s important to build relationships with the key decision makers in the highest echelons of your company to gain support for your request. “Having a champion in the upper part of the organization was very helpful in getting the issue into the room with the leaders of the company,” Schroder said.
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Don’t ignore human resources. Human resources “will get involved at some point and they will either be your enemy or your ally,” says Kim Harris, a former program manager in corporate work force diversity at Hewlett-Packard. Harris was instrumental in adding sexual orientation to HP’s policy in 1992. “Finding someone you can trust and getting advice on how to proceed is a must,” he says.
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Does your company have a GLBT employee group? GLBT employee groups provide an excellent source of information and contacts with other employees who may be in a similar situation. If your company does not have a GLBT employee group, you may consider starting one to raise the profile of your cause and seek out allies. HRC has a tool that can help you do that.
Step 4: Deliver Your Proposal •
Talk to your supervisor about what you are trying to accomplish. Make sure he or she understands what you are doing and why it is so important to you.
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Set up a meeting with the human resources department or a key decision maker for the employer’s anti-discrimination policies and be diligent in following up. Make your business case for including sexual orientation in the non-discrimination policy by following the guidelines later in this document. Know your business, establish your credibility, create alliances and find help where you need it.
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If you don’t get a timely answer, or if the answer you receive is not the one you want, ask for a second meeting for an explanation. If the person you want to meet with won’t meet with you, contact his or her supervisor and ask for a meeting. If necessary, take this up the corporate ladder.
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Don’t get discouraged. “After meeting with the human resources department, we were invited to talk to the CEO and explain why the policy change was important,” Harris recalls. “In spite of our efforts, the senior management team decided not to amend the policy at first. All of the decision making took place behind closed doors. We received the usual answers about constantly reviewing policies and were told the issue might come up again.” Employees at Hewlett-Packard decided next to ask for individual meetings with every member of the company’s executive committee. “We were trying to change minds one by one and we got many favorable responses,” Harris says. “It took two years, but we got the policy changed.”
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Continue this dialogue as long as necessary. Keep track of trends in the workplace. If you see helpful newspaper or magazine articles about gays in the workplace, send copies to your management. Stay in touch with HRC's WorkNet. Offer to answer additional questions and position yourself as a resource in the process.
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If and when you succeed, report your results to the Human Rights Campaign. Contact hrcworknet@hrc.org or (202) 628-4160 and ask for the HRC WorkNet project.
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Sample Non-discrimination Policy
A non-discrimination policy should be simple and straightforward: <Employer name> is an equal opportunity employer and does not discrimination based on race, color, religion, sex, sexual orientation, gender identity or expression, age, disability, marital status, citizenship, national origin or veteran status with respect to recruiting, hiring, promotion, compensation and other terms, conditions and privileges of employment. The non-discrimination policy should: • • • • • • • III.
Clearly state that discrimination won’t be tolerated Enumerate the types of discrimination that will not be tolerated Describe the consequences for violating the policy Be widely publicized in all appropriate employer materials, including job applications and announcements, employee handbooks, diversity materials, websites, intranets and bulletin boards Outline the procedure for workers faced with a discrimination practice Provide for prompt and consistent investigation of any allegation of discrimination Protect against retaliation. Building A Solid Business Case
A business case should include clear, convincing and accurate information and data about why this policy would be good for your employer. Because most employers are in business to make money (even non-profits), you should focus on bottom-line issues. Be prepared to talk knowledgeably about recruitment and retention, the relationship of worker satisfaction to productivity, and marketing and public relations opportunities. While you may feel strongly that this is an issue of basic fairness, very few employers react positively if your only argument is, “Do it because it’s the right thing to do.” If you wish to make this point in presenting your business case, it’s probably a good idea to save this for last and home in on dollars and cents. Following are some of the points you should make: 1. Progressive Workplace Policies Can Improve Recruitment and Lower Turnover With a growing number of employers adding sexual orientation to their policies, it is increasingly easy for GLBT workers to select employers with a more welcoming work environment. A 2000 study by Hewitt Associates, a compensation and management consulting firm based in Lincolnshire, Ill., found that 64 percent 1 of large employers prohibited discrimination on the basis of sexual orientation. Attracting and retaining the best workers is critical. “An essential element of Imation’s EEO policy states that it will not discriminate on the basis of sexual orientation,” William T. Monahan, CEO of Imation Corp., a Minnesota-based high-tech firm, wrote about his company’s policy in June 1999. “In order to compete effectively for these individuals, the company has adopted policies that it believes provide a diverse, safe and
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productive work environment.” Employers that have a reputation for respecting diversity will be at a competitive advantage. Training new workers is costly, and a huge waste if workers are leaving or being fired for reasons having nothing to do with 2 job performance. Some studies have put the cost of recruiting a new employee as high as $75,000 . 2. Inclusive Policies Can Boost Productivity A 1992 survey of 1,400 gay men and lesbians in Philadelphia showed that 76 percent of men and 81 percent of women conceal their orientation at work – from hiding photos of loved ones to avoiding bringing a significant other to company functions. Sometimes, gay, lesbian or bisexual employees who hide their orientation are presumed to be heterosexual and find themselves in uncomfortable situations. A break around the water cooler can turn into a tense conversation about dating, who they’re bringing to an office party or how they’re spending their weekend or vacation. The fear of rejection, losing out on promotions or not being assigned desired work can all factor into an employee’s decision to remain in the closet and not disclose his or her true sexual orientation. Employees who are subjected to anti-gay jokes or remarks may put more of their energy into hiding their personal lives out of fear. The result of hiding is diminished honesty and trust, which can seriously hamper working relationships. Maintaining strong policies against discrimination and providing equal benefits can alleviate personal stress that may keep employees from focusing fully on work. It is also important to keep in mind that these policies affect more than just lesbian and gay workers. An April 2000 survey of Internet users by Witeck-Combs Communications and Harris Interactive found that 49 percent of heterosexuals polled said they have friends or 3 relatives who are gay or lesbian. 3. Supporting Sexual Orientation Diversity Can Lead to Business Opportunities A number of smart, progressive companies have learned that they can turn their gay-supportive policies into marketing opportunities. Only a few years ago, the list of businesses marketing to gay and lesbian consumers was a short one that included mostly liquor and entertainment companies. Today, corporate America is increasingly willing to direct advertising dollars toward lesbian and gay consumers. “Companies are entering the market because of a desire to increase market share for their brand,” says Wes Combs, partner at Witeck-Combs Communications, a strategic communications firm focusing on the gay market. “Our own research has shown that LGBT consumers are very brand loyal to companies that reach out to them.” That loyalty may in part be due to a company’s workplace policies. Research done by Witeck-Combs and others shows that workplace policies are important to gay and lesbian consumers. Seventy-two percent of gay, lesbian, bisexual and transgender consumers said it is important for companies who advertise to the GLBT 4 community to “demonstrate effective corporate citizenship” by supporting the community's causes . And, a March 2001 Harris Interactive/Witeck-Combs Communications poll found that 57 percent of LGBT consumers thought that companies’ policies banning discrimination against them were very important when choosing a bank. Other studies have shown similar cause to consider a marketing campaign geared toward the LGBT
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community. A 1999 study by Greenfield Online Inc. of Wilton, Conn., a market research firm specializing in lesbian and gay consumer markets, found that 72 percent of lesbian and gay consumers prefer to buy from companies that that have a positive stance toward the lesbian and gay community. Of that number, 76 percent stayed with the brand for one year or more. A total of 87 percent of respondents reported that they changed brands based on a company’s negative stance toward the lesbian and gay community and 79 percent of that number never purchased the product again. “LGBT consumers are very savvy about choosing a brand,” says Combs. “Because there are outstanding resources to gather information about a company’s policies over the Internet, it just makes good business sense to have inclusive policies.” A number of major corporations have tried to capitalize in the marketplace by touting their gay-friendly workplace policies. The current list of companies that advertise in gay media includes Prudential, American Express, John Hancock, Anheuser-Busch, Procter and Gamble, United Airlines, Coors Brewing Co., Johnson & Johnson, Bank of America, General Motors, Seagrams, The Hartford Financial Co., Starbucks, Volkswagen, Allstate and Levi Strauss. Read more about advertising to the LGBT community in HRC website's Work Life section on GLBT Marketing.
4. Discrimination Happens Evidence of unfair practices in your own work force can be the most compelling evidence to use in developing your business case. At Hewlett-Packard, employees decided to present a “readers theater” to try to convince HP’s executive management team to add sexual orientation to the company’s policy. They followed a written script of personal stories about discrimination in the workplace that was edited and rehearsed. “The message that came across was that discrimination and harassment was going on,” recalls Kim Harris. “We did a survey of our gay employees because the company was driven by data. But, the reality is the decision process was not based on data, it was based on feelings about what’s right, and your confidence in your ability to explain why to your superiors.” Anti-gay workplace discrimination has been well-documented. The Human Rights Campaign’s Documenting Discrimination Project has collected hundreds of case histories. In addition, a 1992 study that summarized one national survey and 20 city and state surveys of lesbian, gay and bisexual people revealed that between 16 5 percent and 44 percent of gay people reported incidents of anti-gay workplace discrimination in their lives. And a Wall Street Journal poll in 1987 showed 66 percent of chief executive officers of Fortune 500 companies responding would hesitate to promote a gay or lesbian employee to management. Subsequent surveys have found even higher levels of discrimination, some occurring in professions that many might consider more 6 tolerant. 5. Workplace Policies Provide Uniformity In Light of the Lack of A Federal Law No federal law protects workers from discrimination on the basis of sexual orientation – either real or perceived. Federal law only prohibits employment discrimination based on race, religion, national origin, sex, 7 age and disability. Further, the majority of states afford no protection based sexual orientation.
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Since many employers do business in several jurisdictions, some employees may be protected from this type of discrimination while others in the same company are not, merely because of where they happen to work. Lucent Technologies, a high-tech firm based in New Jersey, is part of the majority of Fortune 500 companies that have included sexual orientation in their non-discrimination policies. “All of our employees have to adhere to the Lucent policy,” says Ralph Combs, manager of EEO and affirmative action compliance for Lucent. “With our policy, it doesn’t matter what state you’re in.” Lucent mailed its policy to employees’ home addresses, to make sure they received the new statement once sexual orientation was added. Like Lucent, your employer may find it more efficient to publish a company wide policy to protect all its workers, wherever they are employed. IV. Responding to Common Objections In the course of your effort to obtain an EEO policy that includes sexual orientation, you are likely to hear a number of objections raised. Below are a few of the more common objections and some potential response. 1. We don’t discriminate against anyone. Listing out all of the possible categories would be impossible. If anything, adding this specific category strengthens a company’s claim that it opposes discrimination based on sexual orientation and makes it clear to employees and managers that this type of discrimination will not be tolerated — even though it is perfectly legal in most jurisdictions. Gays and lesbians have historically been a singled out for discrimination based on who they are. But discrimination based on sexual orientation is legal in most states. And federal law only requires employers to include race, religion, national origin, sex, age and disability in their EEO policies. By not adding the words “sexual orientation” to the written EEO policy a company sends a clear signal that sexual orientation discrimination is not on the same footing as these other types of discrimination. 2. Our policy is designed to comply with federal law and going beyond that will open our company up to increased liability. “While in most places the law does not require employers to include sexual orientation, neither does it preclude adding it,” explain attorney Howard Bard, a partner with Feder Semo Clark and Bard, P.C., a health benefits and employment law firm. Bard further explains that not including sexual orientation can lead to more legal problems than including it. “Failure to institute such a policy can invite problems,” Bard says. “Having internal procedures to deal with discrimination and harassment is superior to confronting outside legal action.” Indeed, many employers have added sexual orientation to their non-discrimination policies. “We felt it was important to go beyond federal law because sexual orientation has nothing to do with employment decisions,” Lucent’s Combs says. “If you are going to have a policy, then it should represent all of your employees.” Bard concludes, “These policies are a draw in a competitive marketplace. It’s a costless benefit.”
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3. Other employees will object to the inclusion of sexual orientation in our programs and policies on religious or moral grounds. The point is that all people should be judged at work by their performance on the job. Reasonable people can disagree about whether homosexuality is wrong or immoral but someone’s religious belief is not a license to treat people unfairly. Some religions forbid divorce, but that does not mean that followers of those religions can demand that all of their divorced coworkers be fired. Try to counter such arguments by reminding coworkers that workplace non-discrimination policies surrounding sexual orientation are not about changing personal values, they are about fostering professional respect at work. In fact, most people already share these beliefs. Seventy percent of Christians believe that people should be 8 protected from discrimination based on sexual orientation in the workplace. Most people of faith understand that any religious concerns they may have about lesbian and gay co-workers should be checked at the workplace door – just as other religious differences already are. According to a study by the Pew Charitable Trusts in January 2001, six in 10 Americans say people should discuss with care their religious beliefs while on the job, and another 30 percent say it is best to avoid the topic altogether. 4. Why should a form of sexual behavior get this kind of protection? These policies are not about protecting sexual behavior. Any worker who engages in any kind of sexual behavior on the job should face disciplinary procedures. What we’re talking about is sexual orientation – a state of being, something as intrinsic as handedness or eye color.
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“Domestic Partner Benefits,” Hewitt Associated LLC, Lincolnshire, Ill., Nov. 28, 2000 Zbar, Jeffrey D., “Dealing with the labor squeeze,” Credit Card Management, New York, November 1998.
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“New Harris Interactive / Witeck-Combs Internet Survey Confirms Gays and Lesbians are Among Heaviest Internet Users,” Harris Interactive/Witeck Combs Washington, April 27, 2000.
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“Gay and Lesbian Consumers Trust Brands Most From Companies With Progressive Policies.” Harris Interactive/Witeck Combs Communications, Washington, D.C., June 11, 2001.
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Badgett, Lee, Colleen Donnelly and Jennifer Kibbe, “Pervasive Patters of Discrimination Against Lesbians and Gay Men: Evidence from Surveys Across the United States,” National Gay and Lesbian Task Force Policy Institute, New York, 1992.
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A 1993 study by the Los Angeles County Bar Association Committee on Sexual Orientation Bias found that 68 percent of gay men and 58 percent of lesbians reported that they had either witnessed or were the victims of anti-gay discrimination. Detailed survey questions revealed bias in recruitment and hiring, in the general work environment, in anti-gay statements and jokes, in work assignments, in evaluation and promotion and in pay. Other studies have revealed similar levels of discrimination in the fields of political science, medicine and sociology. [“Report on the Status of Lesbians and Gays in Political Science Profession,” prepared by the Committee on the Status of Lesbians and Gays in the Profession of the American Political Science Association, PS: Political Science and Politics, Vol. 28, No. 3, September 1995. The survey found that 36 percent of respondents had certainly or probably experienced discrimination; Schatz, Benjamin and Katherine O’Hanlan, “Anti-Gay Discrimination in Medicine: Results of a National Survey of Lesbian,
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Gay and Bisexual Physicians,” American Association of Physicians for Human Rights, May 1994. This study found that of 711 survey respondents, 16 percent reported experiencing anti-gay discrimination; Taylor, Verta and Nicole C. Raeburn, “Identity Politics as High-Risk Activism: Career Consequences for Lesbian, Gay and Bisexual Sociologists,” Social Problems, Vol. 42, No. 2, May 1995.] 7
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex or national origin. The Age Discrimination in Employment Act of 1967 prohibits employment discrimination on the basis of age. And, the American with Disabilities Act of 1990 prohibits employment discrimination on the basis of disability.
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From a national survey of 1,007 voters conducted for the Human Rights Campaign by the poling firm of Greenberg Research Inc. Nov., 1996. The poll’s margin of error is plus or minus 3.1 percent.
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