LawyersUSA

A growing number of companies driven by a concern over litigation are ramping up employee training in an effort to stamp out sexual orientation bias in the workplace.

Over the past few years, 20 states have passed laws protecting gay, lesbian, bisexual and transgender workers. And last November the U.S. House passed a bill – the Employment Non-Discrimination Act (H.R. 3685) – that would prohibit employment discrimination based on sexual orientation.

"It started in California, and over the past two years, state after state has followed," said Connie Bertram, an employment law attorney with Winston & Strawn in Washington, D.C.

A number of local and municipal ordinances banning gay bias in the workplace have also passed in the wake of the California law, Bertram noted. (See accompanying map of states that have passed gay bias laws.)

There has been activity in the courts as well. A federal judge in Washington, D.C. recently ruled that a transgender applicant whose job offer was revoked after he disclosed he would be transitioning to life as a woman could sue for sex discrimination under Title VII. (Schroer v. Billington, No. 05-1090 (D.C.D.C. 2007)

The result is that even for employers operating in states without laws against sexual orientation discrimination, it is becoming more common to include sexual orientation as a protected category in company handbooks and to adopt inclusive policies for gay and lesbian employees, such as health benefits for domestic partners.

"Legal costs are one big reason to be ahead of the curve. If there is a complaint mechanism in place that allows a gay or lesbian employee to complain about discrimination or harassment, it protects the company as long as the company follows through on it," said Jack Lord, a partner with Foley & Lardner in Orlando, Fla.

Another change is in employee training. Anti-harassment training has traditionally focused on what not to do. But a new trend is to focus on topics such as how to interact with gay, lesbian and transgender co-workers and clients, and what terminology to use when referring to domestic partners.

"Diversity training is much broader than harassment training," said Christine Nickerson, employment law counsel for CVS Caremark, which is based in Woonsocket, R.I. The goal is "to get companies to understand there's value in having diverse views and backgrounds."

But there's no doubt diversity training is also about preventing lawsuits, said Bertram.

"So many lawsuits are not about overt harassment, but denials – or perceived denials – of opportunity," she said.

If a person is not invited to play golf or go to key meetings or is ignored when he or she speaks, it can lead to feelings of exclusion.

Although feeling excluded is not actionable, "when that person comes up for promotion, those events can be used as evidence of bias," Bertram noted.

Employers are also becoming aware of the costs of turnover and the resulting morale issues when gay and lesbian employees find their workplace is not where they want to stay, said Lord.

"Most companies want to make a statement that they are committed to protecting employees from sexual orientation discrimination at work, even in states in which the law does not specifically include it as a protected characteristic. They don't want a reputation as an unwelcoming place – that can have a negative impact on their business and hinder their ability to attract and retain employees," said Jaclyn Kugell, an employment attorney with Morgan, Brown & Joy in Boston.

Beyond harassment

Employers will often contract with outside companies to provide diversity training. Toronto Dominion Bank which has offices around the world, has hired Brian McNaught, a Fort Lauderdale, Fla. consultant, to conduct training for all its managers.

The company has provided workplace training for other categories such as gender and race, but the sexual orientation topic is "brand new," said Beth Grudzinski, vice president of corporate diversity.

According to McNaught, "an enormous number of consulting companies who used to do just race and gender are now doing sexual orientation training."

McNaught's specialty is diversity and corporate culture, and he approaches it with a mix of personal storytelling and pop culture analogy.

For example, he will often ask seminar participants how the character Elliot in the movie ET was able to entice ET to come out of the closet.

Most know the answer right away: "Reese's Pieces."

McNaught uses this analogy to ask participants what they can be doing to help gay and lesbian co-workers feel comfortable coming out of the closet.

He spends a lot of time suggesting employees try to extend the normal social niceties to their gay and lesbian colleagues, or answering questions about how to ask a co-worker if he or she are gay, or what is the appropriate terminology.

"Let's say I find out you're gay, but I never ask how your weekend was or what your Christmas or Hanukkah plans are, or whose photo that is on your desk. I ask people to think about if you were the gay person how comfortable would you be working here," he said.

The issue of gender transitioning is also coming up more frequently.

Lawsuits over transgender discrimination can go forward at the federal level even where there is no state protection for that category, because of a U.S. Supreme Court case recognizing "gender stereotyping" as a basis of a sex discrimination claim. (Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).)

"Even though transgender [discrimination] is not in a statute, [a plaintiff] could say that a company failed to hire me because I didn't conform to its gender stereotypes. I am seeing more and more of those claims," said Lord.

However, the proposed federal sexual orientation bias law, which passed the House last year, covers only sexual orientation discrimination, not gender identification bias.

Separate or together?

Most employers are including sexual orientation bias as a segment within their overall anti-discrimination training.

This means providing examples of gay bias, inappropriate jokes or anti-gay language when conducting anti-discrimination training.

In some cases, however, an employer might want to address sexual orientation separately.

Lord suggested this might be true "if something has happened within a worksite, such as anti-gay graffiti or strong anti-gay harassment."

Otherwise, it might be unwise to single out one group in anti-discrimination training.

"I am somewhat concerned about emphasizing one protected classification too much. I would have some concern that people would feel, 'This training isn't for me. When is someone going to pay attention to my issues or look out for my rights?'" said Kugell.

Nickerson added: "If the whole idea is inclusion, then you would be missing out on other discussions."

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com