Watch Out For Sexual Orientation Bias

California, along with twenty other states and the District of Columbia, bars discrimination in both private and public employment on the basis of sexual orientation.

At a recent SHRM Legal and Legislative Conference, attorneys Michael Cohen and Marc Scheiner noted that there’s a new level of awareness training needed around sexual orientation.

According to Cohen, your employees and your interviewers are still regularly saying things like, “Gee, you don’t act gay” (or, “You don’t sound black”). There’s generally no ill will intended by these remarks, but that doesn’t mean that they are acceptable, Cohen says.

In fact, he adds, “The defense of ‘I didn’t mean it to be hurtful or discriminatory’ — that’s of no consequence.”

Are remarks like “You don’t act gay” illegal? “Maybe not,” Cohen answers. “But if you’re making others uncomfortable, why do it?” So train your managers not to make these kinds of statements, he says.

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Here’s another example, says Scheiner. Your interviewer sees a wedding band on the applicant’s finger and says, “Tell me about your wife.” (Or “Tell me about your husband.”) You may have just put a gay person in an uncomfortable spot. Whoops.

“You don’t think this is happening,” says Cohen, “but it happens every day.”

Questions You’ll Get from Applicants

On the flip side, you’d better prepare your interviewers for applicant questions such as these, Scheiner says:

• Do you offer domestic partner benefits?
• Do other company policies, such as family leave, include domestic partners?
• Is your organization a comfortable environment for GLBT people?
• What percentage of your workforce is gay?
• May I talk to one of your openly gay employees?

Picky Policy Issues

Cohen identifies a few policy issues for HR managers to consider.

• Do you need to amend your “employment of relatives” policy to include domestic partners and civil union partners?
• Should you consider including domestic partners and civil union partners in your “bereavement leave” policy?
• Does your “dress code/apparel” policy need revision?

Also, Cohen advises employers to be aware that under the Employee Retirement Income Security Act (ERISA) and tax laws, domestic partner benefits are generally taxable income to the partner. Check with your carrier before making benefits changes.

Finally, says Cohen, keep your eye out, because there are always new bills proposed or waiting to be proposed that may alter this landscape.

Tomorrow, we’ll look at some steps you can take to prevent unintentional bias in your workplace.

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