Chapter 10

Chapter 10 Affinity Orientation Discrimination

McGraw-Hill/Irwin

Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

Learning Objectives  Relate the history of the modern gay rights movement  Name the states that include gays and lesbians in their antidiscrimination laws as well as Title VII’s position  Give the pros and cons of employers being inclusive of gay and lesbian employees

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Learning Objectives  Discuss how some courts have circumvented the exclusion of gays and lesbians from Title VII coverage  Identify whether same-gender sexual harassment is covered by Title VII  Discuss the workplace issues involving transgenders

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Learning Objectives  Identify some of the employment benefits issues for gays and lesbians  List some ways that employers can address gay and lesbian issues in the workplace

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Introduction  Affinity orientation: Whom one is attracted to for personal and intimate relationships  Affinity orientation pushes a lot of buttons in society and the workplace  It is an issue all across the world  Vast implications for people’s everyday lives

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Introduction  Personal beliefs must not affect workplace behavior  May lead to employer liability

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States that Prohibit Discrimination on the Basis of Affinity Orientation or Gender Identity California

Colorado

Connecticut

Delaware

Hawaii

Illinois

Iowa

Maine

Maryland

Massachusetts

Minnesota

New Hampshire

New

New

New

Jersey

Mexico

York

Nevada

Oregon

Rhode Island

Vermont

Washington

Wisconsin

Washington, D.C.

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Historical Issues The impact of AIDS in society and in the workplace The military’s “don’t ask, don’t tell” policy The 1993 March on Washington for Lesbians, Gays, and Bisexuals

President Bill Clinton voices support for gays (1992) Clinton’s support for the Employment Nondiscrimination Act [ENDA] Clinton’s appointment of over 150 gays and lesbians in his administration Colorado’s attempted constitutional ban on protection for gays and lesbians

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Out of the Closet  The resistance at Stonewall in 1969  Gay Pride Month

 Employment Non-discrimination Act (ENDA)  Not yet passed by Congress  Extends Title VII’s reach to include discrimination on the basis of affinity orientation

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Out of the Closet  Company support of gay and lesbian events  Gay Pride  Domestic partnership benefits

 National Coming Out Day  Base workplace decisions solely on an employee’s ability to perform the job

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Out of the Closet  Affinity orientation is not covered under Title VII  Discrimination is prohibited under  Local ordinances or executive orders

 State laws

 Every state in the union has some form of job discrimination protection for gays and lesbians  Gender identity statutes: Laws providing protection for transgenders 10-11

Out of the Closet  Other bases for discrimination claims  First, Fifth, or Fourteenth Amendments of the U.S. Constitution  Constitutional right to privacy  Civil tort actions  Gender stereotyping – liability for gender discrimination

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Affinity Orientation as a Basis for Adverse Employment Decisions  Employer concerns if the employee:  Is gay or lesbian  Has primary relationships with those of the same gender  Exhibits inappropriate workplace behavior  Wears clothing, jewelry, or make-up in violation of workplace grooming codes  Is in the presurgery adjustment stages of GR surgery  Undergoes gender reassignment surgery 10-13

Affinity Orientation as a Basis for Adverse Employment Decisions  Employers should  Make a distinction between status or orientation and inappropriate activity  Actions should not be singled out based solely on the actor’s orientation

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Affinity Orientation as a Basis for Adverse Employment Decisions  Employee may fit into more than one category  Liability will ensue if one or more of the categories are protected under Title VII

 Gender-based stereotypes

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Same-Gender Sexual Harassment  U.S. Supreme Court  A cause of action for sexual harassment even if both parties are of the same gender  Basis for harassment must not be the affinity orientation of the harassee

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Gender Identity Discrimination  Gender dysphoria  Gender identity not a protected category under Title VII  Protection under some state and local laws

 Human Rights Campaign  The number of Fortune 500 companies with gender identity protection in their policies has quadrupled just since 2003

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Workplace Issues for Gays and Lesbians  Nondiscrimination policies  Bereavement leave for domestic partners  Vacation leave transfer  Benefits for domestic partners

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Domestic Partner Law Debate  Domestic partner law protects personal wishes such as  The right to have your partner visit if you’re hospitalized  The right to have your partner act as guardian if you’re incapacitated  The right to leave your money and property to who you wish in your will with no court battles from relatives

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Domestic Partner Law Debate  Growth of benefits  Opposing view  Law will legitimize cohabitation

 Domestic partnership will weaken the institution of marriage  Man/woman relationship is best for society

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Employment Benefits  Benefits that other employees take for granted are major hurdles for gays and lesbians  Five states allow same-gender marriages

 Registration of unmarried couples as domestic partners  Living together for a specified length of time

 Given mutual aid and support

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Employment Benefits  Nearly half of the Fortune 500 companies offer domestic partner benefits  90 percent cover a domestic partner’s dependents or children  60 percent extend adoption assistance to domestic partners  72 percent also allow employees to take extended family leave to care for a domestic partner or their dependents

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Employment Benefits  Companies use benefits as a marketing tool to attract and retain gay and lesbian employees  Single-gender couples with children

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Management Considerations  Employers who prefer the benefits of a diverse workplace  Deal with affinity orientation issues in a less restrictive manner  Not have policies that have a hard-and-fast rule of “no transgenders, gays, or lesbians allowed”

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Management Considerations  Actions of gays or lesbians should be dealt with as legitimate workplace issues  Affinity orientation or gender identity is irrelevant to the activity

 Gender identity and affinity orientation policies should come from the top

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Management Considerations  Employers who do not wish to have antidiscrimination based on affinity orientation and gender identity  Liability depends on the jurisdiction in which the employer is located

 Employer’s personal choice  May wish to take an adverse workplace decision to court to maintain maximum control over areas not as heavily regulated as the other protected categories

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Management Considerations  Some employers take a middle-ground position  No policies to support or prohibit discrimination  Deal with issues on a case-by-case basis

 Laws are changing every day  Employers should consider possible repercussions other than liability under Title VII

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Management Tips  Hire using only relevant, work-related criteria  Keep inquiries about applicants’ personal lives minimal and relevant

 Have a policy ensuring all employees respect in the workplace  Policy should protect everyone from unsolicited negative statements about immutable and other characteristics

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Management Tips  Take prompt action whenever there are complaints or violations of the policy  Proactively decide what position to take on affinity orientation-related issues  Be aware of the potential impact on gays and lesbians of workplace policies  Ensure that policies inclusive of gays and lesbians, ensure are fair and handled evenly

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