They're Not In My Locker Room . . . Or Conference Room - The Myth Of The Gay-Free Workplace

Wednesday, February 1, 2006 - 00:00

I admit it. I'm a sports junkie.

Growing up, my first, second and third loves on this planet were the Philadelphia sports teams.

I love most things about sports. I love the competition. I love the conversation. I love the way a team can bring together an entire city. I love its traditions.

Well, most traditions.

There is, however, one time-honored custom about professional sports which, at times, makes me question, in a very real and serious way, whether I ever want to watch or discuss a game again. It's a tradition that most who run the franchises and leagues want people to ignore, but one which too many ignorant athletes refuse to allow the public to forget.

Homophobia

Professional athletes, or at least many outspoken ones, seem to abhor homosexuality. And sadly, the outspoken ones can't seem to keep their mouths shut about it.

Remember the pearl offered by one current National League Pro Bowler: "No, I mean, if I knew there was a gay guy on my college football team, I probably wouldn't, you know, stand for it. . . . You know, I think, you know, they're going to be in the shower with us and stuff, so I don't think that's gonna work. That's not gonna work, you know?"

Well, duh, I like don't know.

But you know who may, another enlightened NFL-er, who apparently shares these views on the locker room. "Aww, hell no! I don't want any faggots on my team. I know this might not be what people want to hear, but that's a punk. I don't want any faggots in my locker room."

And who can forget the proud proclamation by one current free agent relief pitcher, "I wouldn't want a gay guy being around me. It's got nothing to do with me being scared. That's the problem: All these people say he's got all these rights. Yeah, he's got rights or whatever, but he shouldn't walk around proud. It's like he's rubbing it in our face. 'See me, hear me roar.' We're not trying to be closed-minded, but then again, why be confrontational, when you don't really have to be." All truly well thought-out points, particularly you're not trying to be closed-minded - that one clearly comes without any effort at all.

Turns out, this ignorance does not limit itself to the minds and mouths of players. Current NFL General Manager screamed at another team's wide receiver, "You faggot! Yea, you heard me. You faggot!" Predictably, the GM, a former player himself, then offered the classic non-apology apology, "I apologize if I offended anyone." No, I'm sure that kind of slur probably wouldn't have offended a single person. It really is a wonder that, given this kind of forward thinking in its executive offices, this GM never made the playoffs during his tenure as GM.

Ah, tradition.

Unfortunately, the tradition of homophobia transcends the arena of sports and makes its way into many workplaces across the United States. There still exists the far too prevalent misconception among many employers that, much like "they're not in my locker room," there are no gay employees in our workforce. Executives, managers and decision makers everywhere, please disabuse yourself of such an anachronistic notion. And do not stop there. Consider taking the next step. The step that provides rights and benefits to all employees, not just the heterosexual ones.

The new year is here. Make a resolution. Make fairness in your workforce a paramount concern.

Below are three measures the prudent and forward-thinking employer should consider taking in the coming year to achieve a working environment that not only is free from ignorance, unlawful harassment and discrimination, but one that fosters an openness for all of those who work in it.

Step One: Equal Employment Opportunity Policies

The first step in creating a comfortable working environment for all of your employees is to ensure that their rights are protected. Take a look at your Equal Employment Opportunity ("EEO") Policy. It probably says something along the lines of, "The Company is committed to ensuring equal employment opportunity. The Company will not engage in or tolerate unlawful discrimination on account of a person's membership in any protected group." The Policy then probably lists what the protected classes are.

Make sure your policy lists sexual orientation as one of its protected classes.

First, from a fairness perspective, the message it will send to your employees is that they simply are not permitted to treat anyone differently (including making employment decisions or even making jokes or statements) about someone because of his or her sexual orientation.

Second, your failure expressly to include sexual orientation as one of the protected classes may be in derogation of the law. As of today, sixteen states and the District of Columbia prohibit sexual orientation discrimination in both private and public employment. Eleven more states prohibit discrimination in public employment. If you are in one of those states and your policy does not alert your employees that sexual orientation is a protected class, you are going to have a very difficult time defending a sexual orientation discrimination or harassment lawsuit.

In addition, even in those states where sexual orientation is not expressly listed as a protected class, employers who do not include it in their EEO Policies run a couple of risks. First, many local governments do provide more protections than do the states in which they are located, and will provide express protection based on sexual orientation. By way of example, Pennsylvania does not include sexual orientation as one of its protected classes, but ten municipalities (including Philadelphia, Harrisburg and Pittsburgh) do. Employers located within the boundaries of these cities or towns must provide express protection based on sexual orientation.

Second, prudence, and federal law, really do dictate that sexual orientation be included in employers' EEO Policies. Even though Title VII of the 1964 Civil Rights Act (the federal anti-discrimination and anti-harassment law) does not include sexual orientation as one of its protected classes, federal courts throughout the country have accepted various arguments which expand the protections of Title VII to cover harassment and discrimination claims on the basis of sexual orientation. Specifically, many courts have acknowledged that a valid claim for sex discrimination or harassment can be maintained under a theory that a gay employee was targeted for failing to live up to the "stereotype" of what it means to be a man or woman.

Step Two: Family And Medical Leave Policies

The Federal Family and Medical Leave Act ("FMLA") provides twelve weeks of unpaid, job-protected leave to eligible employees. Those employees who meet the FMLA's service time requirements are eligible for leave pursuant to the FMLA if, among other reasons, they need time to care for a serious health condition of an immediate family member, defined as a spouse, parent or child. A spouse, under federal law, is someone of the opposite sex to whom you are married. This definition, obviously and expressly, excepts from inclusion domestic partners or same-sex couples. Accordingly, domestic partners or partners in same-sex relationships are not afforded the same privileges and protections given to opposite-sex spouses under the FMLA.

Federal law provides the floor of protections an employer must provide to its employees. Consider taking a step to rise out of the basement. Consider including in your FMLA policy the ability of someone in a domestic partner relationship or committed same-sex relationship to avail himself or herself of the same benefits and protections given to opposite-sex spouses.

Step Three: Domestic Partnership Benefits

As surprised as some of the above mentioned athletes and executives may be, there are gay athletes in professional sports, and, yes, my bet is they have been in those guys locker rooms. Unfortunately, for these athletes, their true identity is hidden due to the stigma attached to being gay in professional sports. Also an unfortunate by-product of this stigma is the fact that gay athletes' partners are not eligible to receive health insurance coverage that an athlete's heterosexual spouse may receive.

In reality, there are many good reasons for providing domestic partner benefits. First, the traditional "family" is changing. Many states have seen a huge increase in households where same-sex partners live. In the ten year period from 1990-2000, Pennsylvania saw a 344% increase in such households, with New Jersey and Delaware seeing 366% and 781% increases, respectively. In addition, three states (California, New Jersey and Maine) have domestic partner benefits laws, and three other states (Massachusetts, Vermont and Connecticut) recognize same-sex relationships themselves. The idea that all families have a husband, a wife and 2.3 children, with daddy "bringing home the bacon" and the health benefits is an idea that just does not exist in reality to the extent it used to. The traditional family is changing and the prudent employer must change along with it.

Opponents of domestic partner benefits frequently state that the cost is too high to provide the benefits. This argument frequently is belied by the facts. Initially, enrollment in domestic partner benefits programs typically is not high as some employees still are either afraid or uncomfortable with disclosing their sexual orientation at work. Also, to cover a same-sex couple generally does not cost any more than it costs for opposite-sex couples. Finally, there are less tangible, yet more significant, costs associated with not providing the benefits, namely retention and recruitment. Gay employees, like other employees, will leave employment with organizations where they feel they are not being treated fairly or if they feel that they can receive better treatment elsewhere. When employees leave, not only does the organization lose the expertise of that employee, it has to spend the time and money recruiting and training the new employee to get up to speed. From a cost standpoint, the monetary incurrence often is far outweighed by the happiness of the employees, which results in the employees staying around and your ability to recruit other good employees.

Finally, employers often do not provide the benefits due to a concern that gay employees may defraud the company in obtaining the benefits for his or her partner. While this concern certainly seems to get a lot of attention, the fact of the matter is there has not, to date, been a single reported case dealing with such a scenario. While that does not mean that fraud has never occurred, it does seem to indicate that when it does occur, the employer and employee have been able to deal with the situation without resorting to the court system.

In addition, there are measures employers can take to safeguard against the potential for fraud. It is highly recommended that employers require employees applying for domestic partner benefits to complete an affidavit which, in addition to requiring the employee to provide proof of his or her relationship, contains a sworn statement that he or she: (1) will inform a designated person within the organization if the domestic partnership ends; and (2) will be responsible for reimbursement of any expenses incurred by the organization as a result of any false or misleading statement made in the affidavit. With this kind of sworn affirmation made by the employee, the employer's concern that the employee will, in some way, lie or mislead in an attempt to procure benefits really should be alleviated.

The new year is here. As you replace your calendar and start the brand new year, consider revisiting the adequacy of your policies, practices and procedures to make sure that, in 2006, all of your employees are afforded the same rights, regardless of sexual orientation. Think past the initial monetary cost associated with the change and think bigger and longer term. The few dollars you spend today will reap enormous benefits in days, months and years to come. And, please, above all else, eliminate from your mind the idea pigheadedly adhered to by many professional athletes and, more dangerously, by many executives, managers and decision makers, that "they're not in my locker room."

Michael S. Cohen is an Associate in WolfBlock's Employment Services Practice Group, concentrating his practice in the areas of training and counseling on such subjects as harassment prevention, workplace diversity, discipline and discharge, hiring and recruiting practices and other areas of employment law.

Please email the author at mcohen@wolfblock.com with questions about this article.