Sexual Orientation Bias
By Greta Schnetzler and Laurie K. Simonson
Edited by Peg Healy
Category: Special Credit--Bias in the Legal Profession
Elimination of sexual orientation bias within the legal profession is complicated, since the law itself has lagged behind in recognition of sexual orientation as a basis for civil rights protections. There is no federal civil rights statute stating that people should be free from discrimination based on their sexual orientation. However, a nationwide Harris Interactive poll released in June 2001 found that roughly 60 percent of Americans favored a federal law prohibiting job discrimination based on sexual orientation. On July 31, 2001, proposed federal legislation on this issue was reintroduced in Congress. If enacted, the Employment Non-Discrimination Act (ENDA) would prohibit most job discrimination based on sexual orientation.
Significant legal progress has been made at the state and local levels. California, ten other states, and the District of Columbia now provide protection against sexual orientation discrimination in both public and private employment. Nine other states extend such protections to public employees. More than 100 cities and counties have approved ordinances banning sexual orientation discrimination in employment.
Lawyers and judges may not be setting the best example of fairness or sensitivity on issues of sexual orientation. Consider the report of the Sexual Orientation Fairness Subcommittee of the state Judicial Council's Access and Fairness Advisory Committee (January 2001). Fifty-six percent of surveyed gay and lesbian court users reported that they had experienced or observed a negative comment or action toward gay men or lesbians in contact with the court or from a lawyer or court employee. One out of five responding court employees reported hearing "derogatory terms, ridicule, snickering, or jokes about gay men or lesbians in open court, with the comments being made most frequently by judges, lawyers, or court employees." Similarly, a study released in 1994 by the Los Angeles County Bar Association Committee on Sexual Orientation Bias found that 56 percent of lesbian and gay male attorneys who responded reported that they had either witnessed or experienced antigay comments or discrimination in the course of their work. The survey found pervasive bias in all aspects of the legal workplace, from recruiting to work assignments, pay, and promotions.
The issues gay and lesbian attorneys face in the workplace around their sexual orientation are often subtle. An openly gay associate may believe that his well-meaning supervising partner is trying to "shield" him from direct contact with an important but "conservative-minded" client. A gay, politically active senior counsel may feel that many of her colleagues think that her life outside the office is off-limits as a topic of conversation, while they have friendly discussions of family and weekend activities with heterosexual coworkers. A lesbian summer associate from the Midwest may be surprised to learn that she has to choose between attending her Los Angeles firm's picnic and the city's gay pride celebration. A newly hired lawyer in a midsize Sacramento litigation firm may never have openly discussed his sexual orientation with partners and coworkers, because, assuming him to be heterosexual, the managing partner has made antigay remarks in his presence.
The stress and distraction caused by subtle yet pervasive negative workplace interactions can affect the productivity of lesbian and gay attorneys, or even force them to leave their jobs to look for more welcoming, if less lucrative, positions. Even subtle hostility or prejudice against gays and lesbians represents a failure of our profession's commitment to human rights and equal opportunity. In the worst case, severe or pervasive conduct may result in a law firm or company defending a claim of sexual orientation discrimination.
As law firms and corporate legal departments have already recognized with regard to other forms of bias and prejudice, eliminating discrimination makes good business sense. According to a recent study released by the Human Rights Campaign, more than half of the Fortune 500 companies have nondiscrimination policies that include sexual orientation, and 88 percent of the Fortune 50 companies prohibit sexual orientation discrimination. To reach the goal of eliminating sexual orientation discrimination in the legal profession, firms and companies must commit to complying with applicable laws and formulate effective policies and training programs to create a workplace that fosters understanding and acceptance.
On January 1, 2000, California added sexual orientation to the list of "protected characteristics" for which discrimination in employment is prohibited in its Fair Employment and Housing Act (FEHA, Govt C §12940(a)). Sexual orientation is defined as heterosexuality, homosexuality, or bisexuality and includes the perception that a person either has those protected characteristics or associates with someone who does. Govt C §12926(q), (m).
A prohibition against sexual orientation discrimination in employment was previously contained in Labor Code section 1102.1 (added 1992, repealed 1999). However, the addition of sexual orientation to FEHA significantly expanded the rights and remedies for those seeking redress. For example, prior remedies were arguably limited to back pay, while FEHA provides the full panoply of economic and general damages as well as statutory attorneys' fees. See Govt C §§12965, 12970. The inclusion of sexual orientation in FEHA also means that the Department of Fair Employment and Housing (DFEH) has authority to receive and investigate complaints of sexual orientation discrimination. The DFEH indicates that it received 456 complaints of sexual orientation discrimination in the workplace during 2000. The number of such complaints may rise as employees become familiar with the new FEHA provisions.
Employees in California are now specifically protected from harassment in the workplace because of their homosexuality, bisexuality, or heterosexuality. Govt C §12940(j)(1),(3). The proscriptions against harassment apply to a broader group of employers than the antidiscrimination provisions of FEHA since they cover any employer who employs one or more employees, as opposed to five employees for discrimination. Govt C §12940(j)(4)(A).
Under FEHA, employers and others covered by the act must also "take all reasonable steps to prevent discrimination and harassment." Govt C §12940(j)(1),(k). Generally, this has been held to mean that employers must, at a minimum, promulgate and distribute policies regarding nondiscrimination and harassment prevention in the workplace. Govt C §12950(b); Farmer's Ins. Group v County of Santa Clara (1995) 11 C4th 992, 1014 n 11. Depending on the size and situation of the employer, "reasonable steps" may also include training for managers, supervisors, and employees regarding the law and policy. Govt C §12940(j). Additionally, courts have recognized that no antidiscrimination policy can be effective without inclusion of a method for bringing forward and resolving complaints of discrimination or harassment. See Farmer's Ins. Group, 11 C4th at 1014 n 11.
Registered Domestic Partners
Since January 2000, California law has allowed statewide registration of domestic partners with the secretary of state in Sacramento. (For forms, see www.ss.ca.gov/business/sf/forms or call 916/653-4984.) Same-sex couples (regardless of age) and opposite-sex couples, both of whom are over the age of 62 and eligible for Social Security or Supplemental Social Security Income, can register as domestic partners. They must be mentally competent adults, unmarried, neither already registered as a domestic partner, and unrelated by blood. They must share a common residence and agree to be jointly responsible for each other's basic living expenses until the partnership is terminated. The partnership can be terminated when one of the partners sends the other written notice by certified mail; or one of the partners dies, marries, or moves out of the common residence. Fam C §299. Registered domestic partners have hospital visitation rights, and there is health insurance coverage for the partner of a public employee. Health & S C §1261; Govt C §§22867 et seq.
Assembly Bill 25, recently signed by Gov. Gray Davis, provides other protections for registered domestic partners in California, effective January 1, 2002: (1) The right to inherit from a deceased partner without a will (intestate succession); (2) the right to recover wrongful-death damages for the death of a partner after 2001; (3) the same right as bestowed on other family members to make medical decisions for a partner; (4) the right to use sick leave to care for domestic partners; and (5) the right to apply for disability insurance benefits on behalf of a partner. Also, one of an opposite-sex couple may be younger than 62. This legislation will provide the most protections to same-sex couples of any state in the nation except Vermont, but it doesn't approach the more than 1,000 rights afforded married couples.
Editor's Note: The right to inherit from a deceased registered domestic partner without a will referenced in the above paragraph was deleted from the final version of AB 25.
Several California cities, including San Francisco, Los Angeles, and San Mateo, have enacted equal benefits ordinances that require contractors doing a certain amount of business with the city to offer equal benefits to their employees with spouses and their employees with domestic partners.
Policies Against Discrimination
Any California law firm or corporate legal department that has not reviewed its employee handbook since the FEHA amendments went into effect in January 2000 should do so immediately. Since the passage of the FEHA amendments, failure to specifically include sexual orientation in its antidiscrimination policy can now subject a company to liability for failing to take reasonable steps to prevent such discrimination. Also, review the required FEHA postings to make sure that your company or firm is using the most recent version, which includes the relevant language regarding prohibition of sexual orientation discrimination and harassment.
Most employment law experts recommend the adoption of a zero tolerance policy for discrimination and harassment. This allows an employer to take action to remediate situations that may not meet the legal definition of discrimination or harassment and sends a clear message that offensive conduct toward protected characteristics will not be tolerated. Employees should be encouraged to bring any concern forward, no matter how small, so that the firm has an opportunity to resolve issues early, before they result in the loss of an employee or in litigation. An effective policy should specify that retaliation for bringing forward a concern or complaint about sexual orientation discrimination is also not tolerated and can be a separate ground for disciplinary action. Such policies can go a long way toward making gay and lesbian attorneys and staff feel accepted.
When deciding who in the company or firm will be designated to receive complaints or concerns regarding discrimination or harassment, keep in mind that some gay and lesbian employees may be more comfortable discussing such concerns with another gay or lesbian employee. If it is impossible to designate a gay or lesbian attorney or administrator as one of the people employees can contact regarding sexual orientation discrimination, firms should endeavor to designate someone who is likely to be sensitive and sympathetic to such concerns.
All people who are identified to receive complaints of discrimination or harassment on behalf of the firm or company should undergo training covering tolerance, diversity, and sensitivity to sexual orientation issues. It is an excellent idea to incorporate such instruction into the overall training program for managers, attorneys, and staff. Organizations such as the Human Rights Campaign (www.hrc.org) and local human rights commissions can provide valuable information on planning diversity training.
A state-of-the-art policy to eliminate sexual orientation bias in the workplace does not end with the formal antidiscrimination policy. Ensuring equal treatment also means offering equal benefits. Since gay and lesbian couples cannot marry, they are not equally compensated when law firm benefit plans limit participation to employees' spouses. Research shows that the actual cost to companies of offering such benefits is extremely low. Indeed, as of August 2001, the Human Rights Campaign had identified 4,284 employers that have already recognized the value of providing domestic partner insurance benefits to their employees.
In addition to insurance benefits, legal employers should also review their policies regarding other benefits provided by the firm such as sick leave and bereavement leave to include reference to domestic partners and their children. Under AB 25 California employers will be legally required to allow employees to use sick leave to care for domestic partners beginning in 2002.
Education and Outreach
As many law firms have learned with regard to eliminating race, gender, and disability discrimination in the workplace, an effective program of educating and sensitizing their employees to the feelings and experiences of others can increase understanding and lessen tension between disparate groups in the workforce. The incorporation of sexual orientation into such diversity initiatives is essential. For some employees, a reminder of their own legal obligations and potential personal liability is an effective deterrent to discriminatory conduct.
An effective training program to eliminate sexual orientation bias will include content to foster understanding and alliances between gay and straight employees, as well as strong statements regarding the consequences of failure to treat coworkers with respect and fairness. Employees with strong personal or religious beliefs against homosexuality may resist this message. It should be emphasized that all employees have the right to hold their beliefs, but that no one will be allowed to engage in conduct that contributes to a hostile workplace.
One way to retain and develop gay and lesbian attorneys is to include gay and lesbian employees in any mentoring programs established within the firm. Positive role models in the workplace help other employees feel accepted and respected. Employees should not be discouraged from forming gay and lesbian employee associations. Gay and lesbian employees should be given the same support for their outside and community service activities that other employees receive. The firms and companies that are considered most gay-friendly often sponsor or publicly support gay and lesbian legal groups and events.
In addition to workplace training, legal employers can generally do a better job of outreach to gay and lesbian attorneys and law students. Including gay and lesbian attorneys on recruiting and marketing committees is a good place to start. Mailing firm recruiting information to gay and lesbian law student groups and identifying a sympathetic contact within the firm to field inquiries from potential gay and lesbian candidates is also important.
The most basic step toward establishing a positive and productive environment for gay and lesbian employees is to remember that being gay has nothing to do with an employee's ability to do his or her job in a legal setting. Sexual orientation is just one aspect of the whole person. Lesbian and gay employees should be allowed the same opportunities for participation and advancement within the legal profession as anyone else.
Greta Schnetzler is a partner in the employment law practice group of Gordon & Rees in San Francisco. Laurie K. Simonson practices law at the same office and cochairs the Bar Association of San Francisco's Committee on Sexual Orientation Issues.