Public Personnel/Management

Dr. Toland
Chapter 6
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• Sexual Orientation- homosexuality , bisexuality,

heterosexuality, and asexuality are generally included
whenever reference is made to laws to a persons sexual
orientation.
• Sexual Orientation and the Law provides extensive guidance
regarding representing LGBT clients and those in nontraditional
families or relationships. It includes extensive legal arguments,
litigation strategies, current caselaw and legislation, sample
agreements, practice pointers, and forms.
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• Prior terms were sexual preference and affection preference.

• Advocates object to the word preference because it lends to the
thought that one’s sexual orientation is a choice.
• Opponents of laws that prohibit discrimination on the basis of sexual
orientation often claim that pedophilia and bestiality are also sexual
orientations and historically many state laws grouped homosexuality
with those behaviors.
• Transgendered-Transgender, at its most basic level, is a word that
applies to someone who doesn't fit within society's standards of how a
woman or a man is supposed to look or act.
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• Sexual Orientation Discrimination in General Sexual orientation

discrimination refers to harassment or differential treatment based on
someone's perceived or actual gay, lesbian, bi-sexual, or heterosexual
orientation.
• Workplaces, and even a number of states, have policies and laws
against sexual orientation discrimination.
• Some issues with discrimination_- being overlooked for a promotion,
being given baseless write-ups or improvement plans, and wrongful
termination, because the employer or manager disagrees with your
sexual orientation are along the lines of differential treatment.
Amy and Linda, a lesbian couple, are expecting their first baby. Excited for them,
Tina circulated a card around the office for everyone to sign. When Manager Cindy,
who had previously thrown all of the baby showers for the pregnant women in her
office, tore up Amy and Linda's baby card, commented on how she would never
have promoted Linda if she'd known she was gay, and wrote up each of them for
disrupting company productivity.

What could Linda do with this type of discrimination?

Lesbian, Gay, Bisexual and Transgendered in the
Workforce
• There are federal laws that protect against workplace
discrimination based on race, sex, national origin, age, religion,
pregnancy status, and disability.
• There is currently no federal statute prohibiting private sector
sexual orientation discrimination in the workplace.
• However, if you work for the federal government, you are
protected from sexual orientation discrimination. Several
proposals to enact a law protecting employees from sexual
orientation discrimination have been considered, with no
success in them being passed.
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• The EEOC enforces the prohibitions against employment discrimination in

Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age
Discrimination in Employment Act of 1967, Sections 501 and 505 of the
Rehabilitation Act of 1973, Titles I and V of the Americans with Disabilities
Act of 1990 (ADA), Title II of the Genetic Information Non-discrimination Act
(GINA), and the Civil Rights Act of 1991. These laws prohibit discrimination
based on race, color, sex, religion, national origin, age, disability, and
genetic information, as well as reprisal for protected activity. The
Commission's interpretations of these statutes apply to its adjudication and
enforcement in federal sector as well as private sector and state and local
government employment.
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• The EEOC has held that discrimination against an individual because

that person is transgender (also known as gender identity
discrimination) is discrimination because of sex and therefore is
covered under Title VII of the Civil Rights Act of 1964.
• WE KNOW ACCORDING TO TITLE VII of 1964 CRA that nobody should
be discriminated
• Laws have been slow to change in terms of Lesbian and Gay Rights
• Only in 2003-U.S. Supreme Court ruled in Lawrence vs. Texas that
states could not criminalize private and consensual homosexual
activity
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• Lesbians, gay men, bisexuals, and transgendered are not paid

different wages or salaries based on sexual orientation
• Many lesbians and gay men do not face same historical
discrimination borne by people of color and women

• But levels of discrimination can be the same

• For transgendered people it could relate their dress code or which
bathroom or not be allowed to conduct body searches etc.
• Healthcare benefits
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• Federal government employees may file claims of discrimination under the Part
1614 EEO process on any of the bases covered under the laws EEOC enforces,
and/or may also utilize additional complaint procedures described below.
• The Civil Service Reform Act of 1978 (CSRA), as amended, also protects federal
government applicants and employees from discrimination in personnel actions
(see "Prohibited Personnel Practices" http://www.opm.gov/ovrsight/proidx.asp)
based on race, color, sex, religion, national origin, age, disability, marital status,
political affiliation, or on conduct which does not adversely affect the
performance of the applicant or employee -- which can include sexual
orientation or transgender (gender identity) status.
Lesbian, Gay, Bisexual and Transgendered in the Workforce
• Additionally, federal agencies retain procedures for making complaints of discrimination on
any bases prohibited by Executive Orders reviewed below. For example, some lesbian, gay,
and bisexual employees may file complaints under both the agency's Executive Order
complaint process (for sexual orientation discrimination) and 1614 process (for sex
discrimination), as these are separate processes.
• It is the policy of the government of the United States to provide equal opportunity in
federal employment for all persons, to prohibit discrimination in employment because of
race, color, religion, sex, national origin, handicap, age, sexual orientation or status as a
parent, and to promote the full realization of equal employment opportunity through a
continuing affirmative program in each executive department and agency. This policy of
equal opportunity applies to and must be an integral part of every aspect of personnel
policy and practice in the employment, development, advancement, and treatment of
civilian employees of the federal government, to the extent permitted by law.
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• There is a sharp ideological divide over gay rights policy in the United
States concerning the role of government in securing equality.
• Conflicting court decisions and legislative variations among states
contribute to the complex state of affairs.
• The emergence of sexual orientation as a policy issue can be examined
through collective action frames and advocacy coalition frameworks
(Swank and Fahs 2012). Dimensions of collective action frames include
rendering a social norm as unjust, identifying the causes, convincing
citizens that political strategies are necessary for change, and
establishing a shared identity (Swank and Fahs 2012).
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• The slow progression toward LGBT rights first appears in state and local government
actions toward nondiscrimination in employment and the extension of domestic
partner benefits to same-sex spouses of employees.
• Regarding nondiscrimination in employment, former New York City Mayor Lindsay
issued an executive order in 1971 prohibiting discrimination based on sexual
orientation in selection and promotion decisions (Potter 2012).
• In 1984, the city of Berkeley, California extended domestic partnership benefits to
employees (Duncan 2001). Today, 15 states and 151 localities provide domestic
partner benefits (Human Rights Campaign 2009). Twelve localities have gone a step
further by adopting equal benefits ordinances. For example, the ordinance in San
Francisco even requires city contractors to provide domestic partner benefits to their
employees (Human Rights Campaign 2009; Knauer 2008).
Lesbian, Gay, Bisexual and Transgendered in the Workforce

State Benefits Extended to Same-sex Domestic Partners: Alaska

(2006) Arizona (2008) California (1999) Connecticut (2000)
Hawaii (1997) Illinois (2006) Iowa (2003) Maine (2001) Maryland
(2009) Montana (2005) New Jersey (2004) New Mexico (2003)
New York (1995) Oregon (1998) Rhode Island (2001) Vermont
(1994) Washington (2001) Wisconsin (2009)
Lesbian, Gay, Bisexual and Transgendered in the Workforce

• At the federal level, President Clinton issued Executive Order 13087 in 1998 to add
sexual orientation as a protected category to prohibit discrimination in executive
branch employment (Office of Personnel Management 2012). Of greater significance
is President Obama’s move in 2011 to prohibit discrimination against homosexuals in
the U.S. Military by eliminating the policy of Don’t Ask Don’t Tell (Pub. L.104-10, 10
U.S.C. § 654). In addition, President Obama issued a memo to the Office of Personnel
Management to identify means to extend benefits to same-sex domestic partners of
federal employees (“Presidential Memo” 2010). Moreover in 2011, Obama declared
the Defense of Marriage Act (DOMA) unconstitutional. DOMA defines marriage as a
union between a man and a woman, and denies federal benefits to same sex
partners (Department of Justice, February 23, 2011).