Out In The Office

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Employers grapple with Lesbian, Gay, Bisexual and Transgender (LGBT) workplace issues.

by Keith Ecker At first look Glenn Stover appears to be the poster child for privilege in today’s society. He’s white and middle-aged. He received his undergraduate degree from Princeton and his law degree from Harvard. Currently he lives in San Francisco where he operates his own law firm, which specializes in the telecommunications industry. ¶ But take a look at his desk. There are no pictures of a wife. Strike up a conversation, and you won’t hear mention of taking the kids to soccer practice. And ask him about his struggles at his former employer AT&T Inc., where he worked in the legal department for nearly two decades, and he’ll be quick to tell you about the inequality he faced, mistreatment that arose from the fact that Stover is gay (see “Standing Out,” p. 53). ¶ “American business is monolithic when it comes to career development,” Stover says.

“Making friends and mentors and having a wife and children is a standard way of punching the right boxes to move up. Straight employees have a much easier, clearer path than gay employees.”

photo illustrations by C.J. Burton

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Stover’s words reflect those of hundreds of thousands of lesbian, gay, bisexual and transgender (LGBT) employees across the country. Once pressured to lead double lives and exist in a world of self-denial, this is a group that for the past 30 years has grown tremendously in visibility thanks to forces within the gay and transgender communities as well as help from the outside, including major corporations.

This help has come in the form of workplace nondiscrimination policies, as many companies have been quick to realize the benefits of an inclusive workforce. In fact, according to the Human Rights Campaign (HRC), the largest LGBT civil rights organization in the country, nearly 90 percent of Fortune 500 companies prohibit discrimination on the basis of sexual orientation, while more than 30 percent prohibit discrimination based on gender identity, a clause intended to protect the transgendered.

“Employers are becoming more proactive in this area for two reasons,” says Michael Cohen, partner in WolfBlock’s employment services group. “First, they don’t want to get sued for discrimination. Second, they realize that the fairness issue is an important one. Why would you want someone treated differently based on their sexual orientation or transgender status? It just doesn’t make sense.”

Statistical Mistreatment In 2007 the Williams Institute, a think tank at the UCLA School of Law that focuses on advancing sexual orientation law and policy, published a study entitled “Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination.” The study looked at various reports published in the past on the topic of lesbian, gay, bisexual and transgender (LGBT) discrimination in the workplace and aggregated them to get a better idea as to what extent LGBT individuals are discriminated against. Although the ranges in some cases are wide-sweeping, the study did conclude this: “[S]exual orientation-based and gender identity discrimination is a common occurrence in many workplaces in the country.”

16 to 68 Percent of LGBT people experience employment discrimination.

ENDA’s Beginnings

8 to 17 Percent of LGB people reported being

Many attribute the beginnings of the gay rights movement to a 1969 incident outside the Stonewall Inn, a New York gay bar. As police raided the bar and made arrests, patrons stood their ground, throwing bottles and assaulting the officers. This sparked a fiveday protest that at its height included 2,000 participants. The incident propelled the issue of LGBT rights into the mainstream, creating ripples for years to come. But despite decades of LGBT lobbying efforts, the law still lags behind corporate policy.

Currently 20 states as well as Washington, D.C., have banned discrimination in the private sector based on sexual orientation, while 13 states and D.C. have banned discrimination based on gender identity (see “Mapping Discrimination,” p. 54). Other consequences of the Stonewall riots disfavored gays, including the 45 states that have chosen to ban same-sex marriage, legislation many gays attribute to a backlash against the rising equality of the community. Now yet another echo of Stonewall has entered the political fray, and this one is ringing through the halls of Congress.

The Employment Non-Discrimination Act (ENDA) is the most recent attempt to gain equal rights for the gay community on a federal level. Its current iteration was introduced in Congress in September 2007. The House passed it in November, and it currently awaits Senate approval.

The bill would, in essence, give Title VII protection to gay and lesbian employees and afford them all the damages available in such discrimination cases should someone bring a claim. It would also require employers to add sexual orientation to their EEO pol-

fired or denied employment.

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10 to 28 Percent of LGB people reported being denied promotions or given negative performance evaluations.

7 to 41 Percent of LGB people were verbally or physically abused or had their workplace vandalized.

10 to 19 Percent of LGB people reported receiving unequal pay or benefits.

15 to 57 Percent of transgender people reported experiencing employment discrimination.

12 to 30 Percent of heterosexual employees reported witnessing discrimination against their LGB peer.

Source: The Williams Institute “Bias in the Workplace” 2007 study

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When you’re defining what a family member is within the company’s employee handbook, be sure to include domestic partners and be sure to define the term. That’s easy to do if you already provide domestic partnership benefits because you’ll already have the definition.

—Jack Lord, partner at Foley & Lardner

icies. The bill does not, however, preclude discrimination based on gender identity.

Policy Priorities

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Same-Sex Ed

To read about

EEO policies and domestic partner subtle forms benefits are two prominent LGBT of LGBT discrimination, workplace issues. But there are other, visit subtler issues that gay employees deal InsideCounsel with, including improper workplace .com. language and unprofessional interview questions. These less obvious forms of harassment are the reason education and training are key to preventing workplace harassment.

“Human resources and in-house counsel should work together to implement training and policy,” says Lee Schreter, shareholder at Littler Mendelson. “HR makes sure the message is broadcast to everyone, and in-house counsel make sure it’s consistent with legal requirements.”

However, some employers choose to take additional steps to ensure they’re providing LGBT employees with the most inclusive workplace possible. A number of large companies have LGBT affinity groups, in which gay and transgender employees can come

fin d mor e on lin e

Although most Fortune 500 companies already have inclusive EEO policies, a large number of smaller companies do not.

“There’d be certain compliance steps that every employer would have to take if [ENDA] were enacted,” says James McDonald, managing partner at Fisher & Phillips. “Basically, they need to ensure they update their harassment policy and EEO statement to include sexual orientation and ensure sexual orientation issues are incorporated into harassment training.”

Aside from inserting the words “sexual orientation” into the company’s harassment and EEO policies, there are other policies the company would need to revise as well.

For example, employers would need to redraft bereavement policies to include language that speaks to gay employees.

Currently many policies provide for a set number of days of leave in the event of an immediate family member’s death, oftentimes defining “immediate family member” as a child, sibling, parent or spouse.

“When you’re defining what a family member is within the handbook, be sure to include domestic partners and be sure to define the term,” says Jack Lord, partner in Foley & Lardner’s labor and employment practice group. “That’s easy to do if you already provide domestic partnership benefits because you’ll already have the definition.”

However, ENDA would not require companies to extend ben-

efits to partners of gay employees. Most companies extend benefits to spouses of heterosexual employees based on the couple’s marital status. Because most states do not recognize same-sex marriage, companies would not be required to extend domestic partnership benefits to gay employees. Currently Massachusetts is the only state to recognize same-sex marriage, though several jurisdictions, such as San Francisco, do require companies to extend domestic partnership benefits to gay employees.

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Stover. Lesbian employees were

his boss, she personally delivered

while gay men stayed in the closet

yet another message for him to

out of fear for their safety.

transfer. Again he refused. Years

“They’d have nasty things

passed, and he watched his col-

carved in their lockers by fellow

leagues get promoted one after

employees, and complaining to a

another while he maintained his

supervisor would get you laughed

position. “I got word back that

at,” Stover says.

I wasn’t promoted because I

LGBT employees decided

had refused calls to go to head-

to band together. Small pools

quarters, which I thought was

at regional offices began form-

incredibly unfair,” Stover says.

ing ad hoc affinity groups around

Fed up, Stover approached a

1985. A couple of years later, an

senior-level employee who sympa-

enterprisewide LGBT organi-

thized with his struggles.

zation formed called LEAGUE,

“I said I felt as if I’d been

which still exists today. The com-

passed over for promotion due

pany gave the group its support,

to my sexual orientation,” Stover

allowing members to meet on

says. “But if you move me to San

company property and adver-

Francisco, I won’t bother anybody

tise meetings through company

about promotions.”

communications.

Photograph courtesy of glenn stover

Soon after Stover pleaded with

being sexually harassed on the job,

The manager approved

Around this time Stover felt

the request and sent Stover to

Glenn Stover

compelled to come out to his man-

California where he worked at

ager. It was 1987, and his partner

AT&T for five more years before

of more than six years was quickly

opening his own private practice.

When Glenn Stover first started

“All of the sudden I was

working as in-house counsel at

going to be doing a lot of home

rating from the Human Rights

AT&T in Washington, D.C., back in

care for my partner, and I real-

Campaign, the largest LGBT advo-

the early 1980s, he chose to keep

ized it wouldn’t be fair not to let

cacy in the country, for its policies

his sexual orientation a secret. This

work know what was happening,”

and treatment of LGBT employees.

was in spite of the fact that the

Stover says.

In addition, over the past decade,

SPeaking Out:

company was a trailblazer in terms

succumbing to AIDS.

When Stover’s boss heard the

To AT&T’s credit, the company last year received a top

AT&T has contributed more than

of gay equality, having added

news, she offered her support. But

$2 million to nonprofits directly

sexual orientation to its EEO policy

the sympathy was short-lived. Two

serving LGBT communities.

back in 1975.

weeks after his partner died, AT&T

“There was quite a bit of discrimination within the company that needed to be attended to,”

And although things are easier

requested Stover transfer to head-

for him now, Stover still under-

quarters in Basking Ridge, N.J.

stands just how hard being gay in

“I told my manager that if

the workplace can be.

“Even today, with social atti-

Stover says. “You couldn’t get

you want to help me, turn off the

people to come out if they held

request,” Stover says, “because

tudes vastly changed from back

senior management positions with

after going through the experience

when I started, you still have to

the company.”

of nursing my partner through

have some backbone and guts to

death, it’s not a good time to make

do what’s necessary to maintain

such a big change.”

your integrity,” he says.

It was even worse for people on factory floors, according to

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States that have policies banning sexual orientation and gender identity employment discrimination States that have policies banning only sexual orientation employment discrimination

Mapping Discrimination Twenty states and Washington, D.C., have laws banning discrimination based on sexual orientation for employees in the public and private sector. Only 13 have laws banning discrimination based on gender identity.

together periodically and discuss workplace issues. Sometimes such groups are open to supportive straight employees as well.

“Affinity groups have real value in multiple areas,” says William Hibsher, chair of Bryan Cave’s LGBT affinity group. “They can provide mentoring to junior-level staff, help recruit LGBT employees and pull their resources together to seek customer opportunities.

They can also lobby to change company policy and provide feedback to top-level staff regarding the corporate culture from the LGBT perspective.”

Such insight could become crucial to in-house counsel who must constantly mitigate a company’s legal risks. Even in jurisdictions where sexual orientation isn’t a protected class, gay employees can still bring suit under a cause of action known as sex or gender stereotyping.

Typecast Aside Sex stereotyping occurs when a co-worker or employer harasses or discriminates against an employee based on a failure to conform to gender stereotypes. It is a subset of sex discrimination as

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defined under Title VII. The claim really gained footing in 1989 with the Supreme Court case Price Waterhouse v. Hopkins. This case involved a female associate at an accounting firm who’d been passed over for partnership due to her “aggressiveness.” Partners at her firm described her as “macho,” and one partner in particular said she could improve her chances of making partner if she would “walk more femininely, talk more femininely, dress more femininely, have her hair styled, and wear jewelry.”

The Court sided with the employee, ruling that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

Since Price Waterhouse, gay employees have attempted to bring sex-stereotyping claims against their employers when no jurisdictional method of recourse is available. The results of these claims, overall, have not favored the employees.

“There are many courts that won’t let these claims go forward when sexual orientation is an issue in the case,” Cohen says.

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“They feel it’s an attempt to bootstrap sexual orientation to sex as it’s covered under Title VII.” However, where gay employees have found little success with sex-stereotyping claims, the same is not true for transgender employees.

“Some Federal Circuits, particularly the 6th and 9th, have extended Title VII to protect transgender employees because they’re seen as not conforming to gender stereotypes,” Lord says.

The courts’ acceptance of protections for transgender employees may come as a shock. Whereas the movement to protect sexual orientation has been very visible for decades, issues pertaining to transgender people have historically received less attention. This has led to widespread misunderstanding of what it means to be transgender.

Gender Defined

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tial,” says Brian Moulton, associate counsel at HRC. “It continues to increase as corporate America and our society as a whole gain more of an understanding of transgender issues.”

Restroom Rights The biggest issue of all is bathrooms, which most state and local laws do not address.

When a transsexual makes the decision to transition to the opposite sex, that person will want to use the restroom of his or her new physical gender. However, this sometimes makes other employees uncomfortable, especially in instances of male-tofemale transsexuals.

“It’s such a red herring issue,” says Christine Michelle Duffy, senior staff attorney at the Pro Bono Partnership, an organization that provides free legal counsel to nonprofits. Duffy herself is transsexual or, as she prefers, gender affirmed. “People say, ‘Oh my goodness! You’re going to allow rapists into public bathrooms.’

When you get people to calm down and walk them through the issues, they realize it’s not a legitimate concern.”

Experts agree there are two approaches to this issue. The first entails assigning the transitioning employee to a unisex or third

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Photograph by david sacks/getty

Technically, “transgender” is an umbrella term that includes anyone who doesn’t conform to stereotypical gender expectations. This classification includes not only transsexuals—people whose psychological gender differs from their physical one—but also the purposefully androgynous and “cross dressers”—which can include drag queens, drag kings and transvestites, typically men who wear women’s clothing for sexual gratification.

However, in the workplace context, “transgender” most often refers to transsexuals. And although often lumped into the same category as gays, transsexuals face distinctly different workplace issues. In recent years, they have become more likely to make public their gender transition, raising new and sensitive issues for their employers.

“Our firm puts on an annual conference, and last year during a session on diversity, the panelists asked the audience of HR and legal professionals how many had dealt with an employee transitioning from one sex to the other,” Schreter says. “About 20 people out of 80 raised their hands. So there’s obviously a real demand for information on the topic.”

Some corporations have recently embraced transsexual employees in the form of written nondiscrimination policies.

In 2003, HRC recorded 27 Fortune 500 companies that covered gender identity in their EEO policies. As of January 2008, that number has jumped to more than 150.

“The increase for gender identity inclusion has been exponen-

restroom, which helps strike a balance between the transitioning employee’s interests and those of the other employees who may feel uncomfortable at first.

“The most important thing is to educate your workforce and your managers before an issue like this arises,” Cohen says.

“From my experience, once the workforce is informed about transgender issues, including the bathroom issue, they are typically pretty understanding.”

The second approach, and the one experts feel is the most equitable, is allowing the transitioning employee to use the restroom that matches their gender presentation, the gender that the employee is outwardly displaying.

“If you are going through the transitioning process, even preoperation, you should present yourself as the gender you are going to become full time,” Cohen says. “The employer can then take the most pragmatic, fair approach, which is letting the person use the restroom of the gender he or she is presenting as.”

Term Tutorial Although bathroom usage is the biggest issue that perplexes employers of transsexual employees, there are other workplace issues around gender identity. Terminology is a very nuanced issue. There’s the obvious matter of pronouns—whether to refer to the transitioning employee by his or her former pronoun or by the gender to which he or she is transitioning. Also, because most transsexuals legally change their names when transitioning, there’s the issue of incorporating the new name into the workplace.

“In addition to pronoun usage, employers should be prepared to alter work documentation, including e-mail addresses and business cards, so that all identifying materials are consistent with the way the person presents in the workplace and accurately identify the employee by his or her proper name,” Moulton says.

Another issue unique to transsexual employees is medical leave. Oftentimes, transitioning employees require time away from work for different treatments, including hormone therapy and surgeries. HRC recommends employers treat time off for such medical procedures the same as other scheduled, medically necessary procedures.

Being aware of transgender employees’ needs and concerns is an important component of creating an effective workforce, according to Duffy.

“Ninety-nine percent of the battle was just trying to get people to understand that this is a medical condition and that the person in the center of it is still the same person,” she says.

Duffy says she became a better employee after she stopped hiding her sexual identity. “Prior to [transitioning], I was successful in the workplace, but I didn’t interact with my colleagues as effectively as I do now because I had this horrible, deep secret, and I didn’t want to reveal it,” she says. “I probably would have been far more effective if I hadn’t avoided the social gatherings.”

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Alternative Workstyle Duffy’s words reflect the sentiments of many LGBT employees.

That’s why the impetus for most LGBT workplace policies has less to do with the current state of the law or litigation than with the recognition that an inclusive and progressive work environment is also a more productive environment.

“Companies that include sexual orientation in their workplace policies tend to get better work out of their gay and lesbian employees and are more likely to recruit and retain top talent than those that don’t,” Stover says. “So it’s a matter of competitive advantage, and companies need to realize it’s not just a social issue but a business issue as well.”

In addition to pronoun usage, employers should be prepared to alter work documentation, including e-mail addresses and business cards, so that all identifying materials are consistent with the way the person presents in the workplace and accurately identify the employee by his or her proper name.

—Brian Moulton, associate counsel at HRC

And it’s an issue that will continue to grow. States continue to pass pro-LGBT legislation while ENDA will likely pass in the Senate. Courts are more open to interpreting Title VII to protect gender identity while the majority of the Fortune 500 continues to develop progressive policies and programs. And LGBT individuals continue to gain confidence in publicly expressing who they are.

“Things are changing almost weekly, and it’s because people are standing up,” Schreter says. “There is a lot more effort within our own community to develop laws that support us being treated no differently than others.” n

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