Time & Attendance
By James Walsh
Mar. 11, 2011
Emboldened by the repeal of the military’s “don’t ask, don’t tell” policy, gay rights groups have set their sights once again on the federal Employment Non-Discrimination Act, or ENDA. The act would prohibit public and private employers, employment agencies and labor unions from using an individual’s sexual orientation or gender identity as a basis for discrimination.
The proposed law, which was reintroduced in the House on March 30 by Rep. Barney Frank, D-Mass., would cover hiring, firing, promotion or compensation decisions, according to the gay advocacy group the Human Rights Campaign. But James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & AIDS Project, believes ENDA would achieve much more than legal protection in the workplace. “The law sets expectations for society,” Esseks says. “Establishing new social norms for appropriate behavior is going to create a better environment for both straight and LGBT people in the workplace.” With gay employees spending time worrying about discrimination, he adds, companies aren’t fully benefiting from their talent.
Gays are protected from employment discrimination by laws in 21 states and the District of Columbia. In addition, employment bias against transgender individuals is prohibited in 12 of those states and the district. A handful of other states also prohibit discrimination based on sexual orientation, but limit protection to public employees only.
Efforts to bar employment discrimination against gays on a national level date back to 1974, and the ENDA legislation itself has floundered in Congress since 1994. Opponents contend the act would create a more litigious workplace. “ENDA would invite employees to take an ordinary workplace conflict, in some cases with plenty of blame to go around, and turn it, literally, into a federal case,” said Tony Perkins, president of the Family Research Council, in his 2009 House testimony. Some ENDA opponents also argue that sexual orientation and gender identity are matters of choice and that gay and transgender employees aren’t entitled to the same protections as other minorities.
Despite ENDA’s history and the potential roadblock of the new Republican majority in the House, proponents remain optimistic and expect the bill to be reintroduced in Congress in March or April. “With bills like the Don’t Ask, Don’t Tell Repeal Act being passed, we are on the verge of doing away with institutionalized discrimination,” says Daryl Herrschaft, director of the Human Rights Campaign Workplace Project. “There are dozens of major corporations that are petitioning the federal government to pass ENDA; they want and expect the federal government to set a standard of equality of what a workplace environment should be like.”
The project has long lobbied Congress and mobilized corporate support. More recently, it has begun using Facebook, Twitter and its blog to spread the word about ENDA and take the issues from Washington to the homes of people nationwide. “We have a very robust social media effort,” says Brian Moulton, chief legislative counsel at the Human Rights Campaign. “The American public is supportive of the goal ENDA would accomplish, but they are still very uninformed about the fact that it’s legal in so many places in the country for LGBT people to lose their jobs because of who they are.”
According to a 2010 survey by the not-for-profit Out & Equal Workplace Advocates, nearly eight out of 10 heterosexual adults said they believe employees should be judged on job performance, not their sexual orientation. Yet only 44 percent said they believe gays are treated fairly and equally in the workplace.
One of ENDA’s biggest backers is the Business Coalition for Workplace Fairness, a group of 80 major employers, including Cisco Systems Inc. and Ernst & Young, that pledge their support for the federal legislation. “We are already very open and active in ensuring Cisco is a safe place to work,” says Rick Moran, a Cisco vice president and executive sponsor of the company’s gay and transgender employee network. “But I think ENDA will provide visibility to a group that might otherwise be invisible; advocates need to stand up and promote safe work environments where gay employees are respected for who they are and the work they do.”
According to the Human Rights Campaign, as of 2009, 87 percent of Fortune 500 companies had nondiscrimination policies that included sexual orientation. But corporate officials say turning policy into practice is what truly drives a culture of workplace inclusiveness.
At Aetna, it starts at the top. Mark Bertolini, president and CEO of the health insurer, received Out & Equal’s 2010 champion award, which is given to a heterosexual who plays a pivotal role in promoting equal treatment of gay and transgender employees. Bertolini is a visible presence at Aetna’s gay employee resource group events and is also the first elected straight board member of the National Gay & Lesbian Chamber of Commerce. “With our CEO as a clear symbol and sign of our commitment to improving the lives of the LGBT community, we can say we are here for the long haul,” says Raymond Arroyo, Aetna’s chief diversity officer.
At professional services firm Ernst & Young, raising LGBT awareness is at the forefront of its diversity efforts. A recent event included a video showcasing individuals’ experiences. One story profiled a gay man—not from Ernst & Young—whose partner had just died. Not having told co-workers or supervisors about his boyfriend, he went to work the following day. Why? Because, as far as anyone knew, he had no reason not to show up.
“We found that stories like these really had a companywide impact as far as LGBT awareness and LGBT partner inclusion was concerned,” says Chris Crespo, a director in the Americas Inclusiveness Center of Expertise at Ernst & Young. According to the Human Rights Campaign, about half of LGBT employees hide their sexual orientation or gender identity in the workplace. “They are afraid of being fired, or being made fun of, or discriminated against, or not fitting in,” says Justin Nelson, president of the National Gay and Lesbian Chamber of Commerce.
Andre Cooley, for example, says he was fired last year from his corrections officer job in Forrest County, Mississippi, because supervisors at the sheriff’s department discovered he is gay. The ACLU has filed a lawsuit on Cooley’s behalf, citing a violation of his equal protection and due process rights under the 14th Amendment. Most people in Mississippi working for private companies have no legal protection from discrimination on the basis of sexual orientation. But because the county sheriff’s department is a governmental entity, the ACLU contends, the Constitution protects Cooley from anti-gay discrimination. “Andre’s sexual orientation has no bearing on his ability to perform the job of a corrections officer,” says Joshua Block, an ACLU staff attorney.
The sheriff’s department didn’t respond to requests for comment. But in its answer to the lawsuit, it states: “Actions regarding termination or specific rights based upon sexual orientation have not been enacted nationally and specifically by the state of Mississippi in that this is a states’ rights issue.”
Other wor-kers are exploring different avenues to voice grievances. One gay man took to the Internet this year, creating the blog “Gay & Fired” to rail against discrimination. Writing under the pen name “Michael,” and maintaining anonymity, he hopes to connect with others who have experienced discrimination because of their sexual orientation. “I’m going to have to leave the South,” he says, and find a more gay friendly place to live.
Workforce Management, March 2011, p. 3-4 — Subscribe Now!
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