Sexual Minorities in the Workplace: The Status of Legal and Organizational Protection
Charlie L. Law and Elicia A. Hrabal
Penn State Schuylkill
Lesbian, gay, and bisexual (LGB) individuals face many challenges when it comes to managing their sexual orientation in the workplace (Chrobot-Mason, Button, & DiClementi, 2002), and the decision to disclose their orientation at work may be accompanied with a myriad of both positive (see Day & Schoenrade, 1997; 2000) and negative outcomes (see Croteau, 1996; Ragins, 2008). Understanding the experiences of LGB individuals in the workplace is important for industrial-organizational psychologists because perceptions of discrimination by LGB employees have been linked to decreased job satisfaction (Button, 2001; Driscoll, Kelley, & Fassinger, 1996; Griffith & Hebl, 2002) and organizational commitment (Button, 2001), and increased job anxiety (Griffith & Hebl, 2002), turnover intentions, and organizational self-esteem (Ragins & Cornwell, 2001).
King and Cortina (in press) suggest although organizations have an economic interest in providing protection for LGB employees, they also have a social responsibility to protect all of their employees, including sexual minorities. One of their arguments is that LGB employees do not have legal protection in most locations across the United States. As one of the cochairs of the LGBT Adhoc Committee within SIOP, I believe it is important for members in the industrial-organizational psychology community to have an update on the state of LGB workplace rights. The purpose of this paper, then, is to highlight some of the efforts being made at the organizational and legislative level that work to protect LGB individuals in the workplace. We begin by discussing efforts at the federal level to provide protection for sexual minorities including the Employment Nondiscrimination Act (ENDA), the Family and Medical Leave Inclusion Act, the Domestic Partnership Benefits and Obligations Act, the Family Leave Insurance Act of 2009, and the military’s “don’t ask, don’t tell” policy and the Military Readiness Enhancement Act. We then summarize the patchwork protection that various states provide LGB employees and end with a discussion on the organizational efforts that some of the most successful companies in the United States make to protect LGB employees. We also present a brief summary of the significant efforts being made to provide protection for sexual minorities in the workplace, as well as a summary of the laws that already exist that provide a small measure of protection. Much of the following information that we summarize below was obtained from the Human Rights Campaign (HRC), an organization dedicated to the advancement of civil rights for sexual minorities.
Federal Protection
In 1998, President Clinton issued Executive Order 13087, which prohibited discrimination based on sexual orientation for most of the civilian workforce in the federal government. However, to date there exists no overarching federal protection for LGB employees in the workplace. Nonetheless, there are multiple efforts being made to provide LGB employees commensurate workplace rights. All of the following acts have been introduced to Congress but have not yet passed.
Employment Nondiscrimination Act
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. Additional legislature has made it illegal to discriminate based on age, disability, and pregnancy status. Organizations are prohibited from making employment decisions such as personnel selection, compensation, classification, and promotions based on those protected criteria. Currently, sexual orientation and sexual identity are not protected by federal legislation. The Employment Nondiscrimination Act (ENDA) would provide protection for all American sexual minority (gay, lesbian, bisexual, and transgender [LGBT]) individuals in the workplace, similar to the protections provided based on race, religion, sex, national origin, age, and disability. Essentially, ENDA would prohibit public and private employers from making employment decisions based on an individual’s sexual orientation. For example, employers could not make personnel selection, promotion compensation, or termination decisions based on an individual’s sexual orientation. Although ENDA provides protections similar to those afforded under Title VII of the Civil Rights Act, there are many limitations. Organizations with fewer than 15 employees, religious organizations, and the military would all be exempt from the act. In addition, ENDA does not provide for a disparate impact claim, and it does not allow for the imposition of affirmative action for those organizations that violate the act.
The Employment Nondiscrimination Act was first introduced to Congress in 1994, although the first hearings on the act were not held until 1997. In 2007, lawmakers introduced a new version of the law, which included gender identity. The current version of the ENDA, which also includes gender identity, was introduced to the 11th Congress in June 2009 (HRC, 2010a).
Family and Medical Leave Inclusion Act
The Family and Medical Leave Act of 1993 allows employees to take up to 12 weeks of unpaid sick leave to take care of family members with medical needs. Employees who are eligible (worked for a covered employer in the United States for at least 12 months and at least 1,250 hours) can take those 12 weeks for events such as the birth of a child or the placement of a child into adoption or foster care, and the care of a spouse, child, or parent who has serious health conditions. Furthermore, the employee does not have to take the 12 weeks all at one time. The act also allows employees to take the 12 weeks at one time, or intermittently.
Currently, the Family and Medical Leave Act of 1993 does not provide the same benefit to sexual minorities. This means that some employees are unable to be with their partners during times of medical need. The Family and Medical Leave Inclusion Act would allow employees to take 12 weeks of unpaid leave from work if a domestic partner or same-sex spouse has a serious health condition. This act would also allow employees the same time off to care for a parent-in-law, adult child, a sibling, or a grandparent. The Family and Medical Leave Inclusion Act was introduced to the current congress on April 28, 2009 (HRC, 2010b).
The Family Leave Insurance Act of 2009
The Family Leave Insurance Act builds on the Family and Medical Leave Act of 1993 by providing 12 weeks of paid leave to employees who need time to care for their families. This act includes domestic partners and same-sex partners. The Family Leave Insurance Act of 2009 was introduced to the current Congress on March 25, 2009 (HRC, 2010c).
The Domestic Partnership Benefits and Obligations Act
Many organizations include benefits such as health insurance and retirement savings to family members of different-sex partners. Because LGB individuals are unable to legalize their relationship in most areas of the country (i.e., they cannot get married or have their marriage legally recognized in most states), family members of same-sex partners are not guaranteed the same benefits as their heterosexual counterparts. In essence, this means that LGB individuals are not equally compensated for their workplace contributions. This inequality could be problematic for the federal government because many civilian organizations do extend those benefits to same-sex partners. Qualified federal employees might opt to work in the private sector simply because these organizations may provide benefits for same-sex partners.
The Domestic Partnership Benefits and Obligations Act (DPBO) would provide the benefits to domestic partners for both same- and opposite-sex relationships. Those benefits would include participation in the civil service retirement programs (if applicable), participation in the federal employee’s retirement program (if applicable), life insurance, health insurance, and compensation for work injuries.
In order to be eligible to receive benefits for nonmarried couples (both same- and opposite-sex couples), a federal employee (excluding members of the armed forces) would be required to submit an affidavit to the Office of Personnel Management certifying that they live with their partner in a committed and intimate relationship and that they are responsible for each other’s welfare and financial obligations. DPBO is a bipartisan bill introduced to the current congress on July 8, 2009 (HRC, 2010d).
Don’t Ask, Don’t Tell and The Military Readiness Enhancement Act
In 1993 President Clinton signed a law popularly called the “don’t ask, don’t tell” (DADT) policy. According to the DADT policy, a homosexual military member should be discharged if that member engages in or attempts to engage in a homosexual act, if that member states that he or she is homosexual, or if that member has married or attempts to marry a person of the same biological sex (See Belkin & Bateman, 2003). Since the law was passed, over 13,500 LGB military members have been discharged from active duty (SMLDN, 2010). This is the only law that requires punishment (e.g., job loss) and possibly even imprisonment of an individual for expressing their LGB sexual orientation. Although we have previously outlined the lack of federal protection and the push for a modicum of protection for sexual minorities, we have not indicated that any laws exist that require an employer to discriminate against LGB employees. The DADT law is the only law that actually requires an employer (the U.S. military) to discriminate against LGB service members.
The Military Readiness Enhancement Act was introduced to the current Congress on March 3, 2009. This act, if passed, would repeal the DADT law. Essentially, this bill would replace the DADT law and would prohibit discrimination based on sexual orientation in the armed forces. The act would keep current regulations regarding the personal conduct of military members but would ensure that those policies were enforced in a sexual-orientation neutral manner. In addition, service members who had been previously discharged under the DADT policy would be allowed to rejoin the military. This act would not provide benefits for same-sex partners or spouses because other current federal law (Defense of Marriage Act) currently prohibits such benefits (HRC, 2010e).
State Protection
Although there currently is no federal protection for sexual minorities in the workplace, there exists a patchwork of state-level protection for LGBT individuals in the workplace. An exhaustive discussion of laws for each state would be well beyond the scope of this discussion, but we feel it is important to summarize the legal status for sexual minorities at the state level. A number of states and localities have passed laws and regulations that protect LGBT individuals. Gay, lesbian, and bisexual employees face the possibility of workplace discrimination in 29 states due to their sexual orientation, and it is legal in 38 states to discriminate based on gender identity. Twelve states (California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have passed laws that prohibit discrimination based on sexual orientation and gender identity. Another nine states (Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin) prohibit discrimination based on sexual orientation (and not gender identity).
There are also a number of states with pending legislation that may protect sexual minorities in the workplace. Arizona, Connecticut, Delaware, Florida, Indiana, Kansas, Maryland, Massachusetts, Michigan, Missouri, Montana, New York, North Carolina, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, West Virginia, and Wyoming have all had active legislation in the past year that addressed legal protection for sexual minorities. Although the legislation will not pass in some of these states (e.g., the legislation died in Wyoming when the legislature adjourned in March 2009), it is likely that some of these states will be added to the list of states that protect sexual minorities from workplace discrimination (HRC, 2009).
Organizational Protection
Although the federal government has not yet passed legislation protecting sexual minorities in the workplace, many successful organizations have recognized the importance of protecting all employees. Since 2000 there has been a significant increase in the number of organizations that provide protection to sexual minorities. In 2000, only three of the Fortune 500 businesses provided protection to employees based on gender identity. In 2009 that number had increased to 176 (35%). In addition, 61 of the Fortune 100 businesses now include protection based on gender identity. In 2000, 51% of the Fortune 500 businesses provided protection based on sexual orientation. That number increased to 85% in 2009. Furthermore, 94 of the Fortune 100 businesses include protection for sexual orientation (HRC, 2009).
As research shows (see Ragins & Cornwell, 2001), LGB employees who work for organizations that provide benefits to same-sex partners are less likely to perceive workplace discrimination and more likely to have positive workplace attitudes. Successful organizations are also beginning to see the importance of providing same-sex benefits to employees. Fifty-seven percent (286) of the Fortune 500 businesses and 64% of the Fortune 100 businesses offer domestic partner benefits. In fact, 217 of the Fortune 500 and 70 of the Fortune 100 businesses offer COBRA coverage to domestic partners, and 182 Fortune 500 and 61 Fortune 100 businesses offer FMLA coverage to domestic partners. Recently sexual identity has also become more important for businesses, with 28 Fortune 500 (6%) and 18 Fortune 100 (18%) businesses providing health insurance benefits for transgender individuals (HRC, 2009).
Conclusion
Although current federal legislation does not cover sexual orientation or sexual identity as a protected class, there are efforts being made to remedy that situation. While those efforts make their way through Congress and the courts, a number of states have begun to provide protection for sexual minorities. Notably, the most successful organizations (e.g., the Fortune 500 businesses) in our country provide protection against discrimination for LGB individuals and are increasingly providing domestic partner benefits. Although less visible, those organizations are also beginning to recognize the importance of providing the same protection and benefits to transgender employees. As mentioned, the decision of these organizations to extend same-sex benefits to their employees may be a significant factor in the decision for LGB employees to disclose their orientation, which in turn could improve employee workplace attitudes.
As King and Cortina (in press) suggest, due to the absence of legal protection for most LGB employees, organizations have an ethical responsibility to protect sexual minorities in the workplace. I-O psychologists could play an important role in helping organizations to better understand the economic advantages of protecting LGB employees, as well as the social responsibility that organizations have to all of their employees.
References
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