It’s time to get on the winning side of the sexual orientation issue

Not long ago, I heard a story about George Wallace, Alabama’s governor in the 1960s and one of the leading advocates for Jim Crow laws and segregation. He is well-known for his “stand at the schoolhouse door,” where he attempted to prohibit two black students from registering for classes at the University of Alabama. The story was told through the eyes of his daughter, who is now 63 with a family of her own. She talked about trying to overcome her father’s reputation and how she now works to promote racial healing.

I felt sad for Wallace’s daughter, who acknowledged her father’s faults and is trying to change her family’s legacy. I was dumbfounded at the way someone could hold onto and promote an idea that denied individuals equality and had been rejected by the U.S. Supreme Court years before.

While listening to the story, I wondered if my daughters will one day hear similar stories (likely on an Apple® device implanted in their brains) about individuals and companies who opposed or did not offer equality based on sexual orientation. Is sexual orientation the civil rights movement of my generation? Will my daughters cringe listening to those stories in the same way I did listening to the story about Wallace? There are plenty of reasons to think they will. And there are plenty of reasons for employers to act now and provide equality for all individuals without regard to sexual orientation before they become the George Wallaces of this generation.

Here are some recent developments on the sexual orientation front:

• In June 2013, in United States v. Windsor, the U.S. Supreme Court struck down part of the Defense of Marriage Act (DOMA), which denied federal benefits to same-sex spouses.
• The U.S. Department of Labor (DOL) recently issued a rule that changed the definition of “spouse” under the Family and Medical Leave Act (FMLA) to include same-sex spouses. The rule was scheduled to take effect March 27, but at press time, it was put on hold because of a Texas federal judge’s ruling. The change will allow eligible employees to take protected leave to care for a same-sex spouse with a serious health condition.
• On December 14, 2014, the U.S. Department of Justice announced a reversal of its previous position and has now joined the Equal Employment Opportunity Commission in extending the protection of Title VII of the Civil Rights Act of 1964 to allow claims based on an individual’s gender identity.
• A new rule that adds “sexual orientation” and “gender identity” to the list of prohibited bases of discrimination for federal contractors under Executive Order 11246 went into effect on April 8, 2015.

I’m certain there are other examples, but the clear trend in the law and society is to prohibit discrimination based on sexual orientation and provide same-sex spouses the same benefits as opposite-sex spouses, including health and leave benefits. In other words, it’s time for everyone to stop making decisions based on employees’ sexual orientation or the sex of their spouse. It sounds ridiculous, but that is what is happening. Fifty years from now, you don’t want to be the employer my daughters are shaking their heads at.

Kylie Crawford TenBrook serves as corporate counsel for Best Western International, Inc., in Arizona. Previously, she practiced labor and employment law exclusively. In her spare time, she enjoys reading about the misdeeds of celebrities, politicians, and professional athletes and making the tenuous connection between those missteps and what she does for a living.