Out at Work a Tool Kit for Workplace Equality More and More LGBT People Are Coming out at Work

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Out At Work A Tool Kit for Workplace Equality More and more LGBT people are coming out at work. No matter where you work or what you do, you’ll feel more secure in your job if you know your rights. For more than three decades, workplace equality has been a top priority for Lambda Legal. We have created this tool kit to give you the information you need to help guide you through your work life. This kit is organized into three chapters. The first gives an overview of federal and state laws that protect LGBT people and people with HIV from employment discrimination. This area of law is constantly changing, as more states enact nondiscrimination statutes and local governments push ahead against LGBT discrimination and HIV bias. Check our website at www.lambdalegal.org for the most current information about protections available where you live. The second chapter answers many of the common questions that LGBT people and people living with HIV face in the workplace, including: What is a domestic partnership? What are the laws around restroom access for transgender people? How can I request a reasonable accommodation as a person living with HIV? If you think you are being discriminated against at work, you may want to skip to the third chapter — an overview of employment discrimination, and what you can do to protect yourself in the workplace and stand up for your rights. Use this kit as you look for a new job or explore ways to make your current job better. In addition to the information provided, we have included worksheets to help you identify your specific circumstances and improve your workplace. If you need help fighting workplace discrimination or have any questions about this tool kit, contact Lambda Legal’s Help Desk (www.lambdalegal.org/help or call toll-free 866-542-8336). TABLE OF CONTENTS

Chapter 1: Laws and Legal Protections Federal Laws ...... 5 State and Local Laws ...... 8 Other Laws That May Protect You ...... 10

Chapter 2: Workplace Issues for LGBT People and People with HIV The Basics ...... 11 Coming Out ...... 14 Domestic Partnership Benefits ...... 16 Gender Identity and Expression ...... 19 HIV...... 22 Allies and Unions ...... 25

Chapter 3: What to Do if You Experience Discrimination If You Face Discrimination ...... 27 Some Forms of Discrimination ...... 29 Other Important Job Rights ...... 34

Resource Guide ...... 37

Worksheets ...... 45 CHAPTERCHAPTER11 LAWS AND LEGAL PROTECTIONS

After many years of public age discrimination against workers over the advocacy, strategic litigation and age of 40, workers with disabilities, pregnant hard work, lesbians, gay men, women and those who belong to or refuse to bisexuals, transgender people, join a labor union. people living with HIV and their A growing number of federal courts around allies have achieved a variety of the country are recognizing that Title VII’s legal protections against workplace prohibition on workplace sex discrimination discrimination based on sexual bars discrimination against transgender orientation, gender identity and employees. Most courts that have reached HIV status. There are now federal this understanding recognize discrimination against transgender employees as a prohibited laws in place that protect people form of sex stereotyping. Judges are coming to living with HIV from discrimination understand the difference between sexual ori- in any workplace with 15 or more entation and gender identity and expression, employees, but LGBT people have and have been more inclined to interpret Title far less sweeping protections, as VII to prohibit discrimination on the basis of we will see below. gender identity or expression than sexual orientation. Passage of the Employment Non- Discrimination Act (see The Long Fight for Federal Employment Protections on page 7) FEDERAL LAWS would make gender identity protection explicit and unmistakable in federal law, as Sexual Orientation and Gender well as cover sexual orientation protection. Identity In contrast to workers in the private sector, all federal employees are protected against There is currently no federal law that explic- sexual orientation discrimination under itly forbids sexual orientation and gender Executive Order 13087. Federal law also identity discrimination in private-sector prohibits public employment discrimination (nongovernment) jobs. In some cases, LGBT based on sex, including sex stereotypes. If employees may be protected by the federal you experience discrimination for failure to sexual harassment and antidiscrimination conform to stereotypes about your gender, you provisions in Title VII of the Civil Rights Act may have a viable claim under federal law. of 1964. Title VII prohibits employment discrimination based on race, color, religion, sex Public employees enjoy certain constitu- or national origin. Federal law also prohibits tional protections against discrimination

LAMBDA LEGAL 5 because the Equal Protection Clause of the crimination by federal agencies or contractors Fourteenth Amendment prohibits the govern- or by employers that receive federal funding. ment (and government employers) from pur- The Rehabilitation Act provides protections posely discriminating against someone without similar to those provided by the ADA. justification. Public employees have also used the First Amendment’s right to free speech to Under the ADA, employers who do not protect the right to come out publicly. And want to hire a person because he or she is dis- Lambda Legal has successfully used the First abled cannot refuse to do so unless the indi- Amendment to defend the right of teachers to vidual’s disability would truly prohibit him or discuss LGBT issues in the classroom and to her from being able to perform the essential uphold the rights of public employees to asso- functions of the job. In 1998, the U.S. ciate with gay men and lesbians. Supreme Court found that a person with asymptomatic HIV was covered by the ADA. This is the view of the vast majority of courts HIV that have considered the issue, although a few have found that particular individuals living The Americans with Disabilities Act and the with HIV were not disabled. The ADA also Rehabilitation Act of 1973 are the two major outlines specific rules about providing confi- federal laws that protect people with disabili- dentiality and privacy for job applicants and ties, including people living with HIV. The employees with HIV. For instance, applicants ADA prohibits discrimination against people do not have to disclose their HIV status to because they are disabled or perceived to be a prospective employer unless it affects their disabled in any workplace with at least 15 current ability to perform the job. Prior to employees, other than federal agencies. The offering a job, an employer cannot test appli- Rehabilitation Act prohibits disability dis- cants for HIV. Once an employer makes a

WHAT IS U.S. LAW TODAY? a number of court decisions, Employers may not discriminate LGBT employees are protected against employees because of from sex discrimination in some race, color, religion, sex, national circumstances that involve gender- origin, pregnancy, disability, age based acts and stereotypes. (over 40) or union membership at The Equal Employment any stage of the employment rela- Opportunity Commission was tionship — from job advertise- established under the Civil Rights ments, application reviews and Act of 1964. The EEOC created interviews to working conditions, sexual harassment regulations, promotions, performance evalua- that have been used occasionally tions and references. The law is to protect LGBT people from still developing, but according to gender-based sexual harassment.

6 OUT AT WORK CHAPTER 1 LAWS AND LEGAL PROTECTIONS

THE LONG FIGHT FOR FEDERAL TIMELINE OF FEDERAL PROTECTIONS EMPLOYMENT PROTECTIONS In 1974, Representative Bella Abzug 1935EMPLOYMENT DISCRIMINATION BASED of New York introduced the first ON UNION MEMBERSHIP BANNED federal bill to ban sexual orientation discrimination in employment, housing and public accommoda- 1963SEX-BASED WAGE DISCRIMINATION tions. It did not pass. BANNED

Since that time, the Employment Non-Discrimination Act (ENDA), has 1964EMPLOYMENT DISCRIMINATION BASED gone through various incarnations ON RACE, COLOR, RELIGION, SEX AND and re-introductions, none of which NATIONAL ORIGIN BANNED has become law. In seeking political compromise, past versions have 1967EMPLOYMENT DISCRIMINATION AGAINST failed to include gender identity or PEOPLE AGE 40 AND OVER BANNED expression protections or have exempted small workplaces, religious organizations and nonprofit organiza- 1973EMPLOYMENT DISCRIMINATION AGAINST tions like the Boy Scouts. Some ver- FEDERAL EMPLOYEES WITH DISABILITIES sions have discarded the uniform BANNED right to equal benefits for equal work.

In an era of greater awareness and 1974BILL TO BAN SEXUAL ORIENTATION empowerment, transgender activists DISCRIMINATION IN EMPLOYMENT IS INTRODUCED BUT NOT PASSED and their allies insist that protections on the basis of gender identity can no longer be ignored or sacrificed in 1981EMPLOYMENT DISCRIMINATION AGAINST this battle. Notably, in 2006 three PREGNANT WOMEN BANNED states that passed sexual orientation nondiscrimination laws (Illinois, Maine, Washington) also included 1986EMPLOYMENT PROTECTIONS FOR gender identity. Today, advocates IMMIGRANTS PASSED insist that ENDA legislation must forbid employers with 15 or more 1991EMPLOYMENT DISCRIMINATION AGAINST employees from discriminating on the PEOPLE WITH DISABILITIES BANNED basis of sexual orientation or gender identity or because they believe that an employee associates with LGBT 1996ENDA MOVES TO THE SENATE FLOOR people. FOR A VOTE BUT DOES NOT PASS

LAMBDA LEGAL 7 conditional offer (conditioned on passing a including one with HIV, to perform the physical exam, for example), employers can essential functions of a job. test a prospective employee for HIV, but only As required by the ADA, what accommo- if the test is given uniformly to all prospects. dation is “reasonable” and must be provided An employer can ask about a prospective depends on the specific job, the employee’s employee’s health, but can’t use the answers medical needs and the employer’s size. An to screen out people with disabilities unless employer has the right to ask for information the screening is based on inability to perform to make sure the employee is disabled and in job-related functions. After an employee is need of reasonable accommodations and may hired, an employer can usually only ask ques- not have to provide an accommodation that tions about disability or health if the inquiry is too expensive or administratively difficult. is “job-related and consistent with business necessity.” All information and records obtained about an applicant’s or employee’s STATE AND LOCAL LAWS medical condition must be kept confidential A number of cities, counties and states have by the employer. passed laws that can help protect LGBT people Another useful federal safeguard for and people living with HIV. Unlike the federal employees living with HIV is the right to ENDA, which would specifically address reasonable accommodations. Depending on employment discrimination, many of the state, the circumstances, an employer’s reasonable city and county laws encompass a wider range accommodations could include approving a of protections, including housing and public flexible schedule, making the office wheel- accommodations. (Public accommodations are chair accessible or agreeing to other adjust- private entities who own, lease or operate facili- ments that allow a disabled employee, ties such as restaurants, retail stores, private

AT WILL EMPLOYMENT belong to a union, you are In most states, most workers are most likely an employee at will. employed “at will.” Generally, An employment contract or employee handbook may include they can be fired for any reason, specific information about how to with or without notice, except for make a work-related complaint, a discriminatory or illegal reason but promises made in an (i.e., race or sex) as defined by employee handbook are not federal, state or local law. Legal always enforceable. On the other avenues for at will employees are hand, employment protections limited. that your union obtains in a col- If you do not have an employ- lective bargaining agreement are, ment contract and you don’t by nature, enforceable.

8 OUT AT WORK CHAPTER 1 LAWS AND LEGAL PROTECTIONS

WHAT IS A PUBLIC protections than those working in EMPLOYEE? the private sector. Indeed, with the A public employee is a person exception of the military and pos- who is employed by a municipal, sibly intelligence positions, it is county, state or federal agency or widely recognized that sexual ori- state college or university. On the entation discrimination in a gov- whole, LGBT people who are ernment workplace lacks a rational public employees have broader basis and is unconstitutional.

schools, doctors’ offices, homeless shelters and outside of work, so this can cover LGBT day care centers, among others.) employees, as well. Finally, some states and municipalities have prohibitions against In 1982, Wisconsin was the first state to marital status discrimination that may cover outlaw employment discrimination based on employees who are trying to obtain recogni- sexual orientation. Nine years later, the next tion of their same-sex relationships. state — Hawai’i — enacted this protection, and now more than one-third of all states State nondiscrimination laws ban discrimi- protect employees from sexual orientation nation in hiring, promotion and firing and discrimination. Some states also prohibit expressly prohibit harassment based on sexual employment discrimination based on gender orientation (and sometimes gender identity identity or expression. To find out if your and expression), but they may not require state has laws prohibiting discrimination that employers provide equal benefits to their based on sexual orientation and gender iden- employees. A number of local government tity or expression, visit www.lambdalegal.org entities have tried to address that harm by for the most up-to-date information. making equal health benefits available to domestic partners of public employees. In While federal discrimination law applies 1997, the city and county of San Francisco only to employers with 15 or more became the first jurisdiction in the United employees, state laws generally cover smaller States to enact an Equal Benefits Ordinance employers. Many of these state provisions that requires city contractors to provide cover perceived sexual orientation and gender the same benefits to employees who have identity, so that people discriminated against domestic partners as they provide to because they are perceived to be gay or trans- employees who are married. According to gender can state a claim, even if they are not the Human Rights Campaign, as of March gay or transgender or not out. There also 2006, one state (California) and 12 cities and may be state or local laws that protect polit- counties had passed an equal benefits law. ical activity or expression, including coming out. Colorado and North Dakota also forbid Many states prohibit disability discrimina- employers from discriminating against tion, and some states expressly prohibit dis- employees based on their lawful actions crimination against anyone with HIV. In

LAMBDA LEGAL 9 addition, some cities offer specific protections public employee, there may be ways you can for workers with HIV. In some cases, these protect yourself or respond to unfair treat- laws provide greater protection for people ment in the workplace by using other laws in living with HIV than the federal protections place. For example, if your employer has a provided by the Americans with Disabilities contract or collective bargaining agreement Act and Rehabilitation Act. protecting you from discrimination for sexual orientation or gender identity and expression, All state laws have some exceptions. For you may have legal protections under labor example, many religiously affiliated employers contract law. are exempt from laws that prohibit discrimination against LGBT people although publicly In addition, you may have other avenues funded religious organizations are sometimes of legal recourse because some forms of dis- held to a higher standard by the courts. crimination may violate state codes of profes- Some state laws also include exemptions for sional conduct or ethics. Certain tort and domestic workers and various categories of common law theories, such as infliction of nonprofit or tax-exempt organizations (i.e., emotional distress, defamation, breach of the social or fraternal clubs, charitable organiza- covenant of good faith and fair dealing, tions operated by political organizations and wrongful termination in violation of public youth service organizations). policy and interference with contract or prospective business advantage, may also While state laws prohibiting employment apply. An employee suffering harassment on discrimination only cover some LGBT the job may also be able to seek redress for people, protections granted by large cities emotional injuries through workers’ compen- and counties widen the scope. Close to half sation. And an employee who is fired after of all people in the United States live in an colleagues see her with her same-sex partner area that bars employment discrimination outside of work may be able to sue for inva- based on sexual orientation. According to the sion of privacy. Some courts have also applied Human Rights Campaign’s annual “State of other state nondiscrimination laws, including the Workplace” report from 2006, 162 coun- disability protections, to transgender ties and cities had outlawed sexual orienta- employees as well. In general, remember that tion discrimination in public and private the laws — particularly in the field of trans- employment and 82 counties and cities had gender rights — are evolving, and employers outlawed discrimination based on gender are not always following advances in the identity or expression in the workplace. courts. According to the National Center for Transgender Equality, more than 30 percent Lambda Legal secures legal precedents and of the U.S. population lives in an area that interpretations of the law that improve the bars employment discrimination based on working lives of LGBT people, people living gender identity or expression. with HIV and their allies. We also help people understand what these laws mean in everyday life. The following chapters describe OTHER LAWS THAT MAY some practical and proactive actions that PROTECT YOU individual employees and groups can take to create workplaces free from discrimination. If you live in an area without explicit legal rights for LGBT employees or you are not a

10 OUT AT WORK CHAPTERCHAPTER 22 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV

This chapter covers a broad range crimination. Thirty-nine percent of survey of workplace issues that lesbians, respondents reported experiencing some form gay men, bisexuals, transgender of discrimination or harassment in the work- people and people living with HIV place because of their sexual orientation frequently encounter in the work- during the past five years. Clearly, more work is needed before people feel comfortable place. We encourage you to use being out at work. these questions and answers in the way that serves you best — feel free to read through them from begin- Why are employee nondiscrimination ning to end or go directly to the policies important? questions that concern you most. Employee nondiscrimination policies are a If you need further help, or have a primary way to improve workplace conditions question that you don’t see listed for all LGBT people and people living with here, contact Lambda Legal’s Help HIV. Employers often have nondiscrimina- Desk (www.lambdalegal.org/help or tion policies that cover characteristics such as toll-free 866-542-8336) or check out race, age and religion. Adding sexual orienta- our Resources Guide at the end of tion, gender identity or expression and HIV this tool kit. status to this policy is a vital step toward creating a safe, respectful workplace. If you work in a jurisdiction where there are no laws that explicitly protect you against sexual orienta- THE BASICS tion or gender identity discrimination, an employer’s policy may be the only thing you Across the country, LGBT people balance can point to in the event of anti-LGBT dis- their need to work with their right to honor crimination. and express their sexual orientation or gender identity. More than 80 percent of Americans In recent years, there has been a positive believe that sexual orientation discrimination trend among employers towards antidiscrimi- in the workplace is wrong and 61 percent of nation policies that prohibit discrimination Americans believe that transgender people based on sexual orientation. As of June 2006, should be protected from discrimination by the Human Rights Campaign found in its law. But Lambda Legal’s 2005 Workplace annual State of the Workplace Report that Fairness Survey revealed that a large number 86 percent of Fortune 500 companies proof lesbian and gay employees still face dis- hibit discrimination based on sexual orienta-

LAMBDA LEGAL 11 tion. A much smaller number of company What constitutes effective workplace policies include gender identity, although diversity training? that number is rapidly increasing. LGBT activists, allies, employee groups and unions Workplace diversity trainings provide an should work together to draft policies, apply opportunity to educate staff about the issues pressure and form alliances to make sure an affecting lesbian, gay, bisexual and transgender inclusive policy is put in place and enforced. people and people with HIV. These programs are another way, besides implementing an What constitutes a strong nondiscrimi- inclusive nondiscrimination policy, that nation policy? employers can demonstrate their commitment to fostering diversity and creating a respectful There is no standard language for employee work environment. An effective diversity nondiscrimination policies. Different policies training will examine hidden as well as overt can be interpreted to cover (or exclude) bias and give people conflict-resolution skills various forms of discrimination — and, and tips about becoming workplace allies. even more importantly, policies often spell Attendees should learn how they can make the out how an employer will respond in the workplace a more welcoming place for their event of discrimination. When examining LGBT co-workers and those living with HIV. an employer’s nondiscrimination policy, or Such programs should also include training to advocating for the implementation of a new allay fears about HIV transmission, educate policy, keep in mind that a strong nondis- about HIV prevention and provide resources crimination policy should include the for employees with HIV or those with family following: members with HIV. Ideally, the company’s diversity trainers will be well versed in sexual • Clear language that discrimination and orientation and gender identity issues. Check harassment based on sexual orientation, their references and talk to people at other gender identity or expression and HIV workplaces to see if their workshops are suc- status will not be tolerated cessful and practical. • Specifics about prohibited behavior • A description of the penalties for violating the policy What is an LGBT employee resource • A clear outline or grievance procedure for group? an employee who has experienced or witnessed discrimination LGBT employee resource groups (ERGs) can • A declaration of the employer’s commit- start out as lunchtime meetings or listservs ment to prompt investigation of com- for interested workers and develop into pow- plaints of discrimination erful agents for change within the workplace. • A promise of protection against retaliation Often ERGs work to create company • A commitment by the employer to be nondiscrimination policies or to obtain legally bound by its policy domestic partner benefits. They may also When developing inclusive nondiscrimina- provide resources and support for LGBT tion or equal employment opportunity poli- employees or information for management. cies, you and your employers should be Some ERGs focus on advocacy and work- attentive to all aspects and stages of employ- place activism, while others primarily provide ment, from recruitment to termination. social networking and support.

12 OUT AT WORK CHAPTER 2 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV

Many LGBT employee resource groups — designed to let all workers know that discrim- including the LEAGUE at AT&T, the ination will not be tolerated and that their nation’s oldest LGBT employee resource workplace respects and values its LGBT group — have implemented safe space pro- employees. One feature of the safe space may grams. Usually, safe space programs are be visual cues such as magnets, stickers or

MATTER OF MATTHEW CUSICK AND CIRQUE DU SOLEIL “When I was fired by Cirque du Soleil, it was the worst day of my life. This kind of discrimination tears people’s dreams and careers apart. While other people in all sorts of professions will still face HIV discrimination, after today they will have a powerful tool with the settlement we reached.” — MATTHEW CUSICK

In this landmark HIV discrimination Lambda Legal reached a settlement case, Lambda Legal represented with the company — the largest set- Matthew Cusick, who was fired from tlement ever for an HIV-discrimination his job as an acrobat in Cirque du complaint settled with the EEOC. Soleil because he has HIV. Cirque Cirque paid a record $600,000 to hired Cusick to train for its popular end the federal disability complaint, Las Vegas-based show, Mystere. initiated companywide antidiscrimina- Cusick spent months training and tion training and altered its employ- cleared exams by Cirque’s doctors, ment policies worldwide concerning who said he was a healthy athlete, people living with HIV. fully capable of performing. But shortly before he was scheduled to LAMBDA LEGAL’S IMPACT start, Cirque told Cusick that because This is one of many examples of he has HIV, the company would not Lambda Legal’s vigorous efforts to continue to employ him. Cusick ensure that people with HIV and LGBT called Lambda Legal’s Help Desk. We people are treated fairly at work. The filed a federal discrimination com- case upholds the principles of the plaint charging that Cirque had no Americans with Disabilities Act. It also reason to fire Cusick, since he does shows that it is the responsibility of not pose a health risk or safety threat employers to be up-to-date on the to himself or anyone else. Following facts of HIV and treat people with HIV a determination by the federal Equal as they would treat other employees Employment Opportunity — and not rely on myths, fears and Commission that Cirque had likely stereotypes about the disease. engaged in illegal discrimination,

LAMBDA LEGAL 13 posters to help LGBT employees feel sup- policy includes sexual orientation or gender ported and safe to be out on the job. Even identity, it may be safer to come out. Pay without a formal safe space program, many attention to your workplace culture. Are ERGs are active in creating a welcoming other people out? How are they treated? Are environment for LGBT people. you on friendly terms with your co-workers? Depending on your comfort level and the LGBT professional associations serve a potential repercussions in your workplace, similar networking purpose for LGBT people it may be better to come out to only a few who may not work in large or centralized people at first. workplaces. These associations may be initiated through an LGBT caucus or committee The practical reality remains that coming of a larger professional association. In addi- out at work may be quite difficult and even tion to providing support and networking for dangerous for people living in states and LGBT professionals, LGBT professional asso- cities without protections against discrimi- ciations may seek to expand the profession’s nation. This may be especially true for understanding of LGBT issues and elevate workers in small or hostile workplaces or their advocacy on behalf of LGBT civil contractors, freelancers or professionals rights. trying to build their own business or client base. You should evaluate your own situa- LGBT people who work alone or in small tion or seek outside resources to help you workplaces can find support in LGBT groups make this decision. or organizations that are not specifically tied to their workplace or profession. The state groups affiliated with Equality Federation Why is it important to come out at (www.equalityfederation.org) or a local LGBT work? community center (www.lgbtcenters.org) may be a good place to look for support. LGBT Many people see coming out as a positive people with their own businesses may also expression of identity and come out just by being open about their lives in daily conver- want to research whether their city has an sation, as opposed to making an announce- LGBT business association or chamber of ment. For some people, bringing a same-sex commerce. date or partner to the company picnic or holiday party — or even being invited to a COMING OUT co-worker’s home or party — are important milestones, as hard won as domestic partner benefits or nondiscrimination policies. If you How should I decide whether to come are a transgender person, you may have to out at work? deal with issues that make it difficult to maintain your privacy (see pages 19-22), but you If you’ve been working at your job for a while should have the right to decide whether or and you’re thinking about coming out to when to share personal information about your co-workers or supervisor, you have the yourself. advantage of being familiar with the culture at work. In general, it will be easier to be out Coming out also has a social dimension if you have a support system in place. Talk it that goes beyond the individual. By coming over with family, friends or a supportive co- out, you make it easier for co-workers to do worker. If your company’s nondiscrimination the same — or for co-workers with LGBT

14 OUT AT WORK CHAPTER 2 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV family members or friends to come out to gender people to list their gender identity you. Many people don’t realize how many and consistently used name on job applica- LGBT people they know because they tions. Lambda Legal encourages you to presume that their co-workers are hetero- describe yourself in ways that are true to your sexual and not transgender. Coming out can gender identity when you feel comfortable also help change people’s attitudes. Several doing so. studies have shown that when people person- If you fear your otherwise strong applica- ally know someone who is gay or lesbian, tion won’t get a second look if you’re out but they are more likely to support LGBT rights. you still want to pursue the job, consider A 2006 report from the Hunter College organizing your resume to reflect the skills Center for Sexuality and Public Policy found you would bring to a position without listing that heterosexual Americans who have certain details. For instance, instead of contact with gays and lesbians are 13 percent including a long-standing membership in a more likely to support legal recognition of local LGBT group, some people list addi- same-sex couples (either through marriage or tional accomplishments or related skills (i.e., civil unions). Often employers first have to bookkeeper, grant writer, top fundraiser, acknowledge that they have LGBT employees founding member) without giving the name before they become receptive to including of the organization. But you should be pre- sexual orientation and gender identity in pared to answer questions about anything their nondiscrimination policy or providing contained in your resume. domestic partner benefits. Unfortunately, LGBT people and people with HIV may experience employment Should I come out on my job search? discrimination prior to getting a job because their sexual orientation, gender identity or Coming out is always a private decision. You HIV status can prevent them from being should determine how important it is to you offered jobs they are qualified for. This is to be out at work and whether or not you usually difficult to prove, as the hiring will be out on your application, client pitch, process can be subjective and even idiosyn- contract bid or during your interview. Listing cratic. If an employer demonstrates a pattern an LGBT affiliation (with relevant applicable of hiring only certain kinds of people and skills and accomplishments) on your resume never hiring others, the discrimination or cover letter may be a way to find out early becomes more obvious. See our discussion in the process whether a prospective in Chapter 1 about the laws and other protec- employer is likely to treat you fairly. tions that may help you challenge this type of If you are transgender, whether to be out discrimination. in your job search may be of particular concern to you. For example, you may be What can an employer ask me in an unsure how to list your sex or a former name interview? on job application forms, since such disclosure may make you vulnerable to discrimina- The interview questions below are illegal: tion. There is not a lot of case law in this area, but at least one jurisdiction • Are you in good health? (Washington, D.C.) has published guidelines • What prescription drugs are you currently stating that it is not fraudulent for trans- taking?

LAMBDA LEGAL 15 • Have you ever been treated for mental What is a domestic partnership? health problems? • How many days were you sick last year? A domestic partnership is generally defined • Do you have HIV or AIDS? as two people who share a primary residence, • Do you have a disability? are financially and emotionally interde- Depending on the laws in your area, an pendent and have an intimate relationship, employer may be free to ask questions about including a commitment to caring for each your sexual orientation, marital status or other’s needs. The rights and obligations of whether you have children. Most employers domestic partnership vary considerably from won’t ask for this information since it raises jurisdiction to jurisdiction. Nevertheless, for concerns about discrimination if the appli- many same-sex couples in a committed rela- cant is not offered a job. Although they can’t tionship in the United States, it is the only ask whether you have a disability or require form of relationship recognition they have. that you take a medical exam prior to a job Federal laws relating to employee benefits offer, they can ask about your ability to are often not friendly to domestic partner- perform the essential functions of the job and ships. For example, the federal Family and base their decisions on your answers. Medical Leave Act, which allows employees in large companies to take paid or unpaid sick leave to care for a partner (or child or parent) DOMESTIC PARTNERSHIP with a serious medical condition for up to 12 BENEFITS weeks out of a year, does not apply to same- sex partners or to their legal children. The Thousands of private and public employers responsibility is left to employers to provide are now offering benefits such as health insur- fair and parallel coverage for same-sex couples ance, family leave and survivor benefits to the and their families. domestic partners of LGBT employees. In a small number of states, some employers are required to do so because of state or local laws Is it burdensome for employers to or policies recognizing marriages, civil unions offer domestic partner benefits? or domestic partnerships for same-sex couples. Other employers are offering such benefits In most jurisdictions, employers are not voluntarily because they recognize that it is a required to offer domestic partner benefits, good business decision. despite the fact that denying those benefits constitutes a denial of equal pay for equal The section below provides helpful infor- work. Thousands of private employers have mation to people who work for employers taken the lead and are now offering benefits to who are not required by statute or ordinance domestic partners — and they have not faced to recognize marriages, civil unions or administrative problems, fraud issues or exces- domestic partnerships, or for situations where sive costs. Employers that demonstrate their bringing a legal action is not the best strategy. commitment to equality in benefits have an If you live in a state or locality where there is advantage in attracting and retaining qualified such a law, please consult Lambda Legal’s employees, consumers, shareholders and website, Help Desk or an attorney if you clients — and employees who can be open need more information about securing bene- about their lives and have security for their fits at work. families will be more productive.

16 OUT AT WORK CHAPTER 2 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV

How can I advocate with my employer Seven Steps to Adding DP Benefits to Your for domestic partner benefits? Union Contract. • Draft a proposal outlining the who, Every employer is different, and there is no what, when, where, why and how of risk-free or guaranteed formula for securing domestic partner benefits at your domestic partner benefits. However you company. Include a general description choose to proceed, you will have a greater of what domestic partner benefits are chance of success if you tailor your plan to and sample copies of policies from your specific work situation and resources. comparable employers or local govern- It is good to begin with your employer’s ments. Provide letters of support from nondiscrimination policy. If the policy other employers and allies. • Request a meeting with management to includes sexual orientation or marital status, discuss domestic partner benefits. Be pre- you can argue that the lack of domestic pared to educate your employer about the partner benefits contradicts this policy. inequity of policies that exclude domestic Without an inclusive nondiscrimination partners. Stress that employers that offer policy, it may be difficult to advocate for domestic partner benefits have an advan- benefits without fear of discrimination, so tage in attracting and retaining qualified you may want to fight for an inclusive employees. You may also want to reference nondiscrimination policy first. statutory laws that ban discrimination Here are a few tips to get you started: based on marital status and/or sexual orientation. • Talk to your co-workers to find out what level of need and support there is for Will health insurance companies honor domestic partner benefits. domestic partnerships for coverage? • Identify who will ultimately review your proposal and anyone who may be an ally In most cases, employers who want to in this process (i.e., human resources provide domestic partner coverage that officers, union representatives, LGBT includes health insurance have little difficulty employee resource groups). finding an insurer. A domestic partnership • Develop a list of the benefits your affidavit or eligibility standard may help employer offers married couples and prior- address any concerns an insurance provider itize them by need and likelihood. A “hard may raise about fraudulent claims. If an benefit” like health insurance may be your employee must meet a basic eligibility stan- most pressing need, but “soft benefits” dard and declare (under penalty of perjury) such as sick leave or bereavement leave that he or she is in an “intimate and com- may appear less threatening to employers mitted relationship of mutual caring” with because they do not involve changes to his or her domestic partner, the possibility of insurance policies. fraud shouldn’t be any higher than it would • Research and contact other employers be for married couples. who provide domestic partner benefits to gain insight into the process. Consult If your employer is willing to provide resources such as the National Gay and domestic partner benefits but then decides to Lesbian Task Force’s The Domestic exclude health coverage because its existing Partnership Organizing Manual for group plan doesn’t cover domestic partners, Employee Benefits and Pride at Work’s you may be able to persuade your human

LAMBDA LEGAL 17 BRINKMAN V. MIAMI UNIVERSITY “What’s at stake for us here is simply basic for anyone: the legal and social recognition of the equality of our partnership, and our family, with heterosexual couples and families.”

— YVONNE KELLER

When a lawsuit by the antigay nership benefits. Lambda Legal also Alliance Defense Fund and ultracon- moved to dismiss the case on the servative Ohio legislator Thomas ground that Brinkman lacked legal Brinkman threatened Miami standing to sue, since providing University‘s domestic partner benefits health care to same-sex couples program, Lambda Legal intervened caused him no injury. In November on behalf of Professors Yvonne Keller 2006, the court accepted Lambda and Jean Lynch — two university pro- Legal's argument and dismissed the fessors whose families stood to lose ADF lawsuit. The ADF has appealed. their medical coverage if the ADF prevailed. The ADF lawsuit claimed LAMBDA LEGAL’S IMPACT that Miami University’s domestic The court’s decision frees our plain- partner benefits violate Ohio’s consti- tiffs from becoming pawns in a politi- tutional amendment, that limits mar- cally motivated lawsuit by right-wing riage to a man and a woman. extremists. Lambda Legal is taking a Lambda Legal argued that Ohio’s stand against antigay forces around constitutional amendment does not the country, defending ground we’ve apply to the university because it already gained to protect our rela- concerns only marriage and does not tionships and our benefits. address the legality of domestic part-

resources managers to let you negotiate After all of your hard work to obtain these directly with the insurance company. In a benefits, they may still be unequal, through situation like this, you may have to ask your no fault of your employer. The IRS currently employer to pay for an individual policy for does not treat domestic partners as spouses a domestic partner. This arrangement would for tax purposes. This means that unless your require you to contribute the same copay- domestic partner meets the standards of ment amount that your employer would have dependency as defined by the IRS (residency required if you were able to purchase the in the employee’s household, dependency on coverage available for a spouse or dependent the employee for at least half of his or her under the group plan. support, and yearly earnings that are less than

18 OUT AT WORK CHAPTER 2 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV the cap amount stated in IRS guidelines), the your employer does business in that state, domestic partner coverage offered by your justice and consistency mandate respect for employer is taxable income. You should all marriages conducted by that state. factor this substantial tax burden into any budget you and your partner create. GENDER IDENTITY AND EXPRESSION How do I advocate with my employer to respect my marriage to my same- Although the path has not been easy for sex partner? transgender people in the workplace, there are indications that the climate is improving. Whether you take your vows in Unions and other advocates are beginning to Massachusetts, Canada or somewhere else, see transgender rights as a primary battle in you are in a unique position to convince your the fight for workplace equality. Additionally, employer to respect your marriage. While more and more people are learning about there is no guarantee that you and your gender identity and expression issues — partner will be granted the same rights and benefits that different-sex married couples sometimes from the transgender people who receive, you can and should encourage your work with them. According to the Human employer to do the right thing and treat all Rights Campaign, as of March 2007 more married couples equally. than 260 private corporations included written nondiscrimination policies covering You can use the same strategies to advocate gender identity and expression in their for recognition of marriage that you used to employee handbooks. Colleges and universi- obtain equal benefits for domestic partners, ties are also leaders on this issue, with more but you may want to incorporate the fol- than 80 institutions across the country pro- lowing arguments that are specific to civil viding this form of protection. marriages. • You are legally married and can (and in Despite these gains, transgender people some situations are obligated to) describe still frequently encounter workplace problems yourself that way. related to discrimination, harassment, insen- • Employers, particularly corporations, have sitivity, transitioning, health insurance, rest- led the way for other benefits and employ- room access and dress codes. Transgender ment protections for LGBT people — in people in regions without statutory work- many cases offering domestic partner bene- place protections and those who work in fits before local and state governments small businesses or companies are the most began enacting domestic partner registries. likely to feel isolated and inhibited. As with domestic partnership, employers can take the lead in recognizing marriage Transgender people are on the front lines of for same-sex partners. battles that also affect many other people. As • If your employer does international busi- they challenge the rigid stereotypes associated ness in the country where your marriage with “male” and “female” characteristics and license was issued, it is good public rela- behavior, they are helping to create a society tions for your employer to show respect for that is open to a wider spectrum of gender that country’s laws. expression, including gender-nonconforming • If your marriage license was issued by the or androgynous gay, lesbian, bisexual, ques- Commonwealth of Massachusetts, and tioning and heterosexual people.

LAMBDA LEGAL 19 Should I transition on the job? this process. Every state except three (Tennessee, Ohio and Idaho, as of this It is in the best interest of employers to printing) allows transgender people to amend support employees as they transition by their birth certificates to reflect a change in maintaining open communication, respecting gender, but the process varies from state to privacy, informing and educating staff and state and may require proof of sex reassign- promoting the usage of the preferred name ment surgery and/or a court order. and pronoun of the transitioning employee. It is best to talk to your employer at least If you plan to transition on the job, you three months before you plan to transition. should review your employer’s nondiscrimi- Take into account the general climate of your nation policy and your state’s and city’s laws workplace when determining whom you will about discrimination based on gender expres- come out to first (i.e., human resources, sion and identity. If your workplace or region employee assistance program representative, does not explicitly protect you, you may union shop steward, union membership assis- want to consult an attorney, as many courts tance program representative, supervisor or have found protection for transgender corporate diversity specialist). Be sure to employees under sex discrimination laws. gauge the level of confidentiality you can Also, bear in mind that if you quit your job expect (and request) in each situation. It may to transition and then start over elsewhere, be helpful to provide your employer with a your job search may be complicated, espe- report and timeline about your transition cially when it comes to providing a complete process, but be sure to mark this information work history or personal references. as “personal and confidential.” Obtain copies of your performance evaluations and other What are some guidelines to keep in materials that your company has on file mind about transitioning on the job? before you transition, just in case you face discrimination down the line. It will also be Before you transition and throughout the helpful to keep a record of your transition, process, gather and maintain connections including any workplace discrimination you with allies such as family, friends, transgender experience, in a journal that you keep at support groups, a therapist and/or an LGBT home. employee resource group to help you during The more support your employer is willing the transition. You may want to find out if to show for your transition, the faster your your therapist, doctor or health professional co-workers will adjust. You should inform co- is willing to communicate about your transi- workers about your transition in a thoughtful tion to the proper people at your workplace and professional way, consistent with your and give them permission to do so. comfort and any work rules (i.e., hold a Acquaint yourself with the process for meeting or send a personal memo accompa- legally changing your name and other identi- nied by a letter from your employer). You fication documents such as your Driver’s may have to educate people by answering License or state ID, and notify your employer their questions or providing them with infor- if you legally change your name. Many mational materials. Request that your organizations, including the Sylvia Rivera employer consult a transgender workplace Law Project (www.srlp.org), have a number consultant or conduct workplace sensitivity of resources online to help guide you through training, if possible.

20 OUT AT WORK CHAPTER 2 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV

LOPEZ V. RIVER OAKS “I was shocked when I received the call from human resources taking away the job they’d offered me — it felt as if they’d said to me ‘you’re a monster; we don’t want you here.’”

— IZZA LOPEZ

In September 2005, Izza Lopez, a LAMBDA LEGAL’S IMPACT 26-year-old transgender woman, This case gives the Southern District accepted a job as a scheduler with of Texas the opportunity to follow in River Oaks Imaging and Diagnostic, the footsteps of other federal courts a medical imaging company in around the country in recognizing Houston. After resigning from her that transgender employees are pro- position with her then-current tected by Title VII, the federal law employer, Lopez received a call from banning sex discrimination in the River Oaks rescinding the job offer workplace. A victory will clarify and because of her “misrepresentation” advance workplace rights for trans- of herself as a woman. Lopez was gender people while educating unable to get her previous job back employers that discrimination against and was without employment for transgender employees is not per- several months. Lambda Legal has missible under federal law. filed a federal discrimination lawsuit on Lopez’s behalf. The case is pending.

Can I receive health care coverage for employee resource group’s advocacy — you my transition? may also ask employers to provide health and disability leave for transitioning and mainte- Employee health insurance plans often nance procedures and therapies. explicitly exclude medical procedures that are essential to many transgender people, such as What does the law require about rest- hormone replacement therapy or sex reassign- room access for transgender people? ment surgery. Employers who self-insure (pay their employees’ medical claims directly The law requires employers to provide a safe rather than using outside insurance and convenient restroom for all employees. providers) are more likely to extend these There may be laws at the state and local level health insurance benefits. As part of your that will affect how your employer handles advocacy — or your union’s or LGBT the question of restroom access for trans-

LAMBDA LEGAL 21 gender or transitioning employees. For set of issues. If you decide to come out as a instance, a state law or local ordinance may crossdresser to your co-workers but do not require that restrooms be accessible to people intend to crossdress at work, you should be based on their gender identity. To maintain aware that confidentiality cannot be guaran- consistency and respect throughout and after teed. If you do crossdress at work, you also the transition process, transgender employees may have to avoid clothing that would be should be allowed to use the restroom that considered inappropriate under the sex- corresponds with their gender identity. Some specific dress codes that your employer is transgender employees might prefer to use enforcing. One federal court has gone so far single-toilet unisex bathrooms with doors as upholding the termination of an employee that lock. who crossdressed off the job. Even workplace Transgender employees should discuss nondiscrimination policies that include restroom access with their employer before it gender identity and expression might not becomes a major issue in order to address protect you against such unfair treatment. any concerns they may have. If co-workers complain about sharing bathrooms, HIV employers can opt to make special arrange- ments for the complaining employee rather In the third decade of the epidemic, HIV than for the transgender employee. In 2002, continues to have a devastating impact on a federal appellate court upheld the right of our communities. Over 1 million people an employer to allow a transgender staff nationwide are living with HIV today, and person to use gender-identity-appropriate there are approximately 40,000 new infec- restrooms despite complaints from another tions each year. Among people living with staff person. HIV in the United States, 45 percent are men who have had sex with men. The epidemic is having a particularly serious impact What are my rights when it comes to on black gay men. following my employer’s sex-specific dress code? Health care and medical alternatives for people with HIV have improved dramatically Some legal decisions state that employers since the first years of the epidemic, which have the right to implement and enforce means that more and more people with HIV dress codes with different requirements for are in the workforce or planning to enter it. male and female employees. However, Employers are bound by federal laws, and in numerous courts have held that sex-specific some cases, state and city laws, to work with dress codes must not place significantly people with HIV to ensure job security, unequal burdens on men and women. To privacy, reasonable accommodations and a the extent that it is comfortable, transgender workplace that is free of harassment and discomfort (see pages 6-8). But many employees should dress in accordance with employers do not understand the laws pro- the dress code requirements applicable to tecting people with HIV. In clear violation their gender identity. of these laws, companies often terminate or Crossdressers — those who wear clothing refuse to hire employees with HIV because associated with another sex but who do not they erroneously perceive them as a risk to undergo gender transition — face a related co-workers, the public or themselves.

22 OUT AT WORK CHAPTER 2 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV

You should familiarize yourself with should carefully consider the risk of discrimi- your rights under the Americans with nation or retaliation before revealing their Disabilities Act (ADA) (www.ada.gov and HIV status to others in their workplace or www.eeoc.gov/types/ada.html), the community. Rehabilitation Act of 1973 (www.national- If your HIV status is known to your rehab.org) and find out about any applicable employer, the ADA generally requires state and city laws in your area. Businesses employers to keep HIV-related information can learn more by consulting the Centers for confidential and prohibits employers from Disease Control and Prevention’s Business discriminating against people with HIV. Responds to AIDS and Labor Responds to AIDS However, for disclosures made outside of the tool kits, the Society for Human Resources protections of the ADA (i.e., disclosure to a Management’s National AIDS Fund Tool Kit co-worker or disclosure in a workplace with and the website www.thebody.com. fewer than 15 employees), there may not be People with HIV work in a variety of jobs a legal obligation for your employer or other demanding physical, mental and emotional employees to keep all information about your stamina. Some workers with HIV require rea- HIV status confidential, and the ADA may sonable accommodations in order to perform not protect against discriminatory conduct. a job; others, with proper diagnosis and med- Therefore, you should be careful about ications, may never experience illness that whom you discuss your HIV status with and affects their work. HIV infection does not keep in mind that, although there are legal affect each person in all the same ways. Your protections against employment discrimina- HIV status alone should not be used to tion based on HIV status, there are some dictate what you can — or cannot — do. gaps in what those laws cover, and discrimi- Your ability to work is controlled by your nation may be hard to prove. specific condition, not by your HIV status. How do I request a reasonable accom- Should I disclose my HIV status to my modation as a person living with HIV? employer and/or co-workers? Approach your immediate supervisor first. People living with HIV may not be able to You may also need to enlist the support of safely disclose their HIV status in the work- your human resources department or a place given the persistence of HIV-related union representative. Keep in mind that not stigma and discrimination. The American everyone you speak to may be held legally Bar Association and the Centers for Disease accountable to protect your confidentiality. Control and Prevention both have recom- If your employer asks for proof that you are mended that individuals who test positive disabled, you may want to consult an for HIV receive legal advice about the attorney before making a disclosure about importance of maintaining their confiden- your HIV status. An employer might con- tiality, which helps an individual avoid sider it sufficient for your doctor to explain becoming the victim of discrimination. in writing that you have a “chronic condi- Revealing your confidential information at tion” that causes you to need the accommo- work may subject you to discrimination, and dation you are requesting, without specifying remedies for that discrimination may not be what that condition is. Other employers may available. For these reasons, people with HIV require you to provide a medical diagnosis.

LAMBDA LEGAL 23 Put your request in writing, and use the business, the job at issue and the type of word “accommodation.” Always emphasize accommodation you need. Common accom- how productive the accommodation(s) will modations for people with HIV include time make you. Be realistic about your request. off for doctor’s visits, flexible work schedules Your employer’s obligation to accommodate for employees who experience fatigue at you will depend on the particular facts of certain times of day or access to a refrigerator your situation, such as the size and type of to store medications. Remind your employer

SAAVEDRA V. NODAK ENTERPRISES “I knew right away that what Nodak did to me was wrong. No one should have to endure the kind of humiliation and disrespect I suffered just because of HIV. I’m glad I fought back.”

— JOEY SAAVEDRA

Joey Saavedra, a 45-year-old HIV- tion to our litigation, Lambda Legal positive man, was a skilled auto-glass launched a national public education installer who had worked in the campaign against the company, industry for nearly 27 years when he highlighting HIV discrimination in was fired from his job because he has the workplace. Within months of HIV. During an interview for a job launching the campaign, Lambda with Nodak Enterprises for a position Legal reached a settlement agree- installing auto glass, Saavedra dis- ment with Nodak Enterprises. closed his HIV status to the company’s district manager. After he LAMBDA LEGAL’S IMPACT was hired, Saavedra also told his In the settlement, Nodak Enterprises direct supervisor. Three months later, agreed to adopt a nondiscrimination after news of his HIV status made its policy, conduct extensive training on way up to the company’s leadership, HIV issues for its employees as well Saavedra was fired — even though as pay an undisclosed amount of he did his job well and his direct money to Saavedra. This settlement supervisor wanted to keep him on not only affects the 42 stores that staff. Lambda Legal filed a federal Nodak operates across seven lawsuit in May 2004 on behalf of southern states, but it sends a Saavedra, saying Nodak violated the message to employers across the Americans with Disabilities Act, which country that HIV discrimination will prohibits discrimination against quali- not be tolerated. fied people with disabilities. In addi-

24 OUT AT WORK CHAPTER 2 WORKPLACE ISSUES FOR LGBT PEOPLE AND PEOPLE WITH HIV to address any backlash you receive from co- HIV infection. As an ally, you can take steps workers who feel you are getting “special to change discriminatory practices and poli- treatment.” cies in your workplace and encourage others to be allies. One important way to do this is Bear in mind that you will not be in a to “interrupt” homophobic, racist and sexist good position to negotiate if you request rea- statements and actions. Similarly, don’t par- sonable accommodations retroactively. For ticipate in or condone speculation or com- example, you will be in a better position if ments about co-workers’ sexual orientation, you let your employer know that you will gender identity or HIV status. Look people need flexibility about your arrival time, rather in the eye and make simple statements such than wait until you are approached by your as “Please don’t use that language around me” supervisor for arriving late to work every day or “I don’t agree with that.” If you do not for a month, and then saying, “You need to feel comfortable interrupting certain behav- let me come in late because I have a condi- iors as they are happening, you can talk to tion that makes it very difficult for me to be participants afterwards to tell them how you on time.” feel. For more ideas on how to take a stand for LGBT people and people living with ALLIES AND UNIONS HIV, check out our worksheet “Rate Yourself as a Workplace Ally” at the end of this kit. The LGBT and HIV-affected communities are themselves collections of allies — lesbian, gay, Why is it important for my union to bisexual, transgender and HIV-affected people support LGBT people and people — who work together for common goals of living with HIV in the workplace? civil rights. They advocate for each other’s rights, as well as their own. But LGBT people Unions are responsible for representing and and people with HIV also need the support of advocating for their members and can be a individuals and organizations outside their powerful resource in fighting all kinds of communities. It is hard to achieve lasting workplace discrimination. Union collective changes in workplace conditions and laws bargaining agreements contain information without allies and supporters. In order to have about grievance procedures, the right to seek the greatest impact, people need to work an arbitrator if you can’t reach a resolution together and become allies in workplaces, and your right to receive assistance from a unions and professional associations. union representative. When union fights are successful, they are How can I be a workplace ally to LGBT particularly noteworthy because collective people and people living with HIV? bargaining agreements are legally binding in ways that other kinds of employer policies There are many ways that you can be sup- and protections may not be. Unions can also portive of your LGBT and HIV-positive co- make a compelling argument to employers workers. A good first step is to recognize with sites in multiple states, because a collec- the individuality of all your co-workers and tive agreement standardizes employment educate yourself about the forms of discrimi- protections for the entire bargaining unit, nation that your LGBT co-workers and co- regardless of a state’s employment protection workers with HIV face, as well as facts about laws. A local union or chapter may also be

LAMBDA LEGAL 25 affiliated with a much larger state or interna- increase the visibility of LGBT people and tional union that can pass member resolu- people with HIV within the union by tions endorsing the rights and equality of including stories and columns about LGBT LGBT people and those with HIV. and HIV issues in membership publications and websites and elevating LGBT people and A union can support LGBT employees and people with HIV to leadership positions. those with HIV by fighting for an inclusive employee nondiscrimination clause, making equal benefits for LGBT people a primary What if my union is not sympathetic to battle during contract negotiations and LGBT or HIV issues? demanding and enforcing transparent employment, disciplinary and termination Like some employers, co-workers or govern- practices that protect all workers. Unions can ments, unions may not be receptive to the also be instrumental in shaping an employer’s needs of their LGBT and HIV-affected workplace diversity program. They can also members. The education process may be slow support statutory protections for LGBT going and a little frustrating at times. Even people and people living with HIV through if your union is doing nothing for LGBT union lobbyists; identify pro-LGBT, pro- workers specifically, you should make sure union political candidates and help to block they are ensuring that employees are fired anti-LGBT candidates. only “for cause” as this provides protection against discrimination. Bear in mind that unions can’t discriminate against LGBT What steps can my union take to show workers if the union is located in a city or support for LGBT people and people state where LGBT employees are protected with HIV? from discrimination. For example, if a union hiring hall won’t give a construction worker There are many ways your union can raise an assignment because she is a lesbian, the the visibility of LGBT and HIV issues inter- worker may have grounds to file a discrimi- nally. Your union can show respect for same- nation complaint or a grievance under the sex relationships by extending all union procedure outlined in her collective bar- benefits (i.e., union pension plans) to same- gaining agreement. sex partners and the families of same-sex couples and ensure that membership- If your union leaders decline to help you assistance programs are sensitive to the issues with a workplace grievance or if they do so and concerns of LGBT people and people halfheartedly, you have the option of talking with HIV. Your union can design and directly to an attorney about any discrimina- conduct inclusive diversity trainings for tion you experience at work. You might also union staff and membership and provide a consider forming a caucus within your union higher level of training for shop stewards and to improve the outlook for LGBT and HIV- others handling grievances for LGBT and affected members in the future. HIV-affected employees, as well as host or sponsor educational forums around LGBT and HIV issues. Your union can negotiate for nondiscrimination clauses, domestic partnership benefits and transgender-inclusive health insurance coverage. Your union can also

26 OUT AT WORK CHAPTERCHAPTER 33 WHAT TO DO IF YOU EXPERIENCE DISCRIMINATION

from state to state or from town to town, so Some federal, state or local laws it is important for you to contact an attorney, prohibit discrimination based on Lambda Legal’s Help Desk or some other sexual orientation, gender identity expert to learn about the particular options or expression or HIV status, but in available in your case. many states there are few laws that Here are some basic steps to take if you provide such protections. In some believe you have been discriminated against circumstances, even where there is on the job: no specific antidiscrimination law, a company is legally responsible for • Collect evidence about the discriminatory conduct and a list of any witnesses. the conduct of its supervisors and • Always keep your favorable personnel managers, and this may include reviews and any nonofficial commendatory being responsible for any discrimi- remarks (such as congratulatory emails). natory or harassing behavior. Even You should do this at all times, because if your city, state or employer documentation of your good job doesn’t expressly prohibit discrimi- performance can sometimes vanish nation based on sexual orientation from the company records once trouble or gender identity, when faced with begins. discrimination, you should consider • Obtain and read your employer’s personnel contacting Lambda Legal or a local policies and/or your union contract to attorney with experience in learn about contractual rights and any employment discrimination law to complaint procedures. see if you have any other legal • Consider any grievance procedures available to you through your employer and/or options. your union. • If state or local laws apply to you, consider filing a complaint through your state or IF YOU FACE local civil rights enforcement agency; DISCRIMINATION contact an attorney for advice or represen- tation and be aware of any deadlines for The sections below provide details about the filing complaints. steps you can take if you feel that you have • With an attorney’s assistance, consider been discriminated against on the job. Some whether any other legal actions in state or of the specific laws and procedures will vary federal court can help to protect your rights.

LAMBDA LEGAL 27 Documenting and Reporting or memo as soon as possible. After all, it Discriminatory Treatment is much more compelling to produce a detailed memo or journal entry that was Any investigation or later resolution of a written three months ago than it is to complaint will often depend on proof of the attempt to recall an occasion of discrimina- actual conduct. Whether you witness dis- tion that occurred three months ago. crimination or you are subjected to it your- If there is a legal claim, other people will be self, always keep a written record. If a able to read what you wrote, so don’t say any- co-worker or a supervisor sexually harasses, thing that is inaccurate or that you wouldn’t abuses or discriminates against you in any want others to read later. In your notes, include way, write down your experience in a journal a chronology of events leading up to and fol-

IF YOU THINK YOU ARE EXPERIENCING DISCRIMINATION IN THE WORKPLACE, CONSIDER THE FOLLOWING QUESTIONS: ◆ What makes you think that you tion, HIV status or transgender were treated differently because identity.) of your sexual orientation, ◆ Has your employer treated other gender identity or HIV status? LGBT or HIV-affected employees What kind of evidence do you well? (If so, it may be harder to have? prove that the employer discrim- ◆ How were other LGBT or non- inated against you.) LGBT people or people with HIV ◆ Has your employer treated other treated in similar situations? LGBT or HIV-affected employees ◆ How long have you worked for badly or fired them? (If so, this this employer? (The longer might be seen as a “pattern” of you’ve been at a job, the more discrimination and therefore help credibility you may have.) your case.) ◆ How have your performance ◆ Have you complained to your evaluations been? (It helps if you supervisor or to a union or have a good record.) human resources representative? If so, what was the response? ◆ How do people at work know your sexual orientation, gender ◆ Does your employer have a identity or HIV status? nondiscrimination policy that (Employers may claim that they includes sexual orientation, couldn’t be guilty of discrimina- gender identity and health or tion because they weren’t aware HIV status? of an employee’s sexual orienta-

28 OUT AT WORK CHAPTER 3 WHAT TO DO IF YOU EXPERIENCE DISCRIMINATION

FINDING AN ATTORNEY ◆ Do they or their firm have expe- Lambda Legal’s Help Desks rience with employment cases (www.lambdalegal.org/help or toll- involving sexual orientation, free 866-542-8336) are a good gender identity or HIV status? resource if you think you are expe- ◆ Do they have any doubts about riencing workplace discrimination the equality rights of LGBT because of sexual orientation, people and people with HIV? gender identity or HIV status. If ◆ Lambda Legal is not able to take Do they know what kinds of your case, the Help Desk may be arguments will be used against able to help you find an attorney you in a case? in Lambda Legal’s cooperating ◆ For additional insights, see attorney network or elsewhere. Lambda Legal’s fact sheet “Some Suggested Questions to Ask a Some questions to keep in mind Prospective Attorney” available when interviewing prospective at www.lambdalegal.org. attorneys:

lowing any problems you’ve had at work. List the best practice is to put such requests in as many details as possible, including: writing and keep a copy) • The date, time, location, people involved You should keep this documentation at and a description of what took place home, not in the workplace, and your records • What was said, who said it, when and should also include a current copy of your where it was said, who was in the room or employee manual or union contract and vicinity or heard it related emails, correspondence and other • Any different treatment (i.e., if straight paperwork to the extent that company policies employees were treated differently in a allow. You should also try to obtain a copy of similar situation) your personnel file, including performance • Any procedures or policies that weren’t evaluations. (You are sometimes legally enti- followed tled to this material.) Obtaining a copy of this • Any witnesses file early in the process prevents an unscrupu- • Any reasons the employer gave for what lous employer from backdating negative docu- happened ments and placing them in your file. • Timing (for example, if problems seemed to start after you came out to your boss or co-workers) SOME FORMS OF • Copies or photographs of any offensive DISCRIMINATION material • Documentation of any attempts you or Employment discrimination may occur at others made to address the situation (often various points in the process of getting and

LAMBDA LEGAL 29 TAYLOR V. RICE “Being HIV-positive has impacted my life in countless ways since I was diagnosed, but it has never kept me from being able to do a job. I’m still hopeful that I can be judged based on the skills and experiences I bring, along with my overall long-term health status, rather than just on whether I have HIV.”

— LORENZO TAYLOR

Lorenzo Taylor was denied employ- people with disabilities. Lambda ment by the U.S. Foreign Service Legal aims to change the State because he has HIV. Taylor is fluent Department’s outdated policy by chal- in three languages, holds a Foreign lenging it in court – and in the court Service degree from Georgetown of public opinion through a grassroots University and easily passed the public education campaign. rigorous application process required to be a Foreign Service Officer. Since LAMBDA LEGAL’S IMPACT 2003, Lambda Legal has represented Lambda Legal’s discrimination com- Taylor in his efforts to seek justice in plaint aims to end HIV discrimination this case, which is now in the trial in the U.S. Foreign Service once and phase. We contend that the State for all. Under the current policy, the Department’s policy barring all HIV- Department of State denies candi- positive Foreign Service candidates dates for Foreign Service Specialist or violates the federal Rehabilitation Act. Foreign Service Officer the individual- The Act prohibits the federal govern- ized consideration they’re entitled to ment from discriminating against under federal antidiscrimination law.

keeping a job — and a person may experi- without regard to personal characteristics ence more than one type of discrimination. unrelated to job performance. But this is not Generally, employment discrimination may always the case. unfairly affect decisions about hiring, promo- You may believe you have been discrimi- tion, termination or may create a hostile nated against in a hiring or promotion deci- workplace environment. Each of these types of discrimination is explained below. sion because one or more of the decision makers said derogatory or hostile things about LGBT people or people living with Hiring and Promotion HIV, or because you observed others not known to be LGBT or living with HIV who Ideally, employers would hire or promote the were less qualified than you hired or pro- person with the best qualifications for a job moted ahead of you. It is easier to prove a

30 OUT AT WORK CHAPTER 3 WHAT TO DO IF YOU EXPERIENCE DISCRIMINATION claim of discrimination when someone has practices, but such cases may be difficult made explicitly discriminatory remarks or and complex. has demonstrated discriminatory attitudes (with posters or literature, for example, that denigrate LGBT people or people living Wrongful Termination with HIV). Hiring or promotion discrimination can sometimes be proved by detailed One of the most common types of employ- analysis of the qualifications of candidates ment discrimination cases Lambda Legal and statistical analyses of the employer’s handles is wrongful termination of LGBT

DUNBAR V. FOOT LOCKER, INC. “I am very pleased to have this over and to be able to move on with my life. The support I’ve gotten throughout this ordeal, sometimes from complete strangers, gave me confidence to persevere.”

— KEVIN DUNBAR

As an employee at Foot Locker (the tion and open-door policies. A settle- athletic footwear and apparel chain), ment agreement provided a mone- Kevin Dunbar suffered severe antigay tary settlement for Dunbar, along harassment and discrimination at the with a commitment from Foot Locker hands of his co-workers, supervisors to more vigorously train its managers and a customer. Foot Locker prom- and employees about antigay harass- ises a harassment-free workplace and ment and to provide information on includes sexual orientation in its poli- support and services to handle such cies on discrimination and harass- harassment. ment, but when Dunbar formally complained, the discrimination only LAMBDA LEGAL’S IMPACT intensified. Dunbar was transferred As a result of Dunbar’s case, Foot from one store location to another Locker employers nationwide will and eventually fired. In cooperation be trained in the dangers of antigay with the South Carolina Equality harassment and given resources to Coalition, Lambda Legal filed a help combat it. Additionally, the case lawsuit against Foot Locker on sent a message to employers in Dunbar’s behalf. Lambda Legal South Carolina and beyond that com- argued that Foot Locker breached its panies must take measures to enforce contract with Dunbar by violating its their own antiharassment and antidis- own antiharassment, antidiscrimina- crimination policies.

LAMBDA LEGAL 31 employees or employees with HIV. In the Under the law, employers may not need recent past, we have won cases on behalf of to present compelling or rational reasons for athletes, food-industry workers and auto-glass terminating employees; even though their specialists who were fired because their actions might be arbitrary or unfair, they employers believed their HIV status made might not be illegal. If you are laid off or them dangerous to themselves or others on fired, you will have a lot to think about. the job. We have also successfully represented Your employer might offer you a severance a variety of people who were fired because of package that provides more money to you their sexual orientation. but requires you to sign an agreement that you will not bring a legal complaint. Each Wrongful termination claims can also person must consider the advantages and include circumstances where an employee is disadvantages of such an agreement — the officially laid off or downsized but the advice of an attorney might be very helpful employer unfairly singled the employee out in deciding whether or not to accept such a for a discriminatory reason or used the layoff severance agreement. If you believe you were as a pretext for discrimination. Employers fired or let go for a discriminatory reason, sometimes eliminate jobs or change job speak with an attorney familiar with employ- assignments because they are reducing the ment law or call Lambda Legal’s Help Desk size of their workforce or reorganizing it. for more information. Such “layoffs” or “downsizing” are generally legal, even though they usually feel very unfair to the employees who lose their jobs. A Hostile Workplace Sometimes an employer also uses a layoff People often assume that job discrimination unfairly to target an employee who would is only related to hiring, promotion or firing, not otherwise lose his or her job. In other but other kinds of employment discrimina- words, the employer does not have a real tion exist. Workplace discrimination against business reason for laying off the employee people because of their sexual orientation, beyond discrimination on the basis of sexual gender identity or HIV status can also create orientation, gender identity or expression or a hostile work environment that effectively HIV status. These actions can sometimes be makes it impossible for an employee to do challenged under the law. his or her job. Overt harassment and violence Employers often have a great deal of lati- on the job are examples of such a hostile tude and discretion when it comes to termi- environment. nating staff, and wrongful termination claims Employees also may suffer from their are often more subtle and complex than they employer’s ignorance or disregard for the appear on the surface. A wrongful termina- actual needs of lesbian, gay, bisexual, trans- tion claim may be complicated if an gender and HIV-affected employees and their employee was terminated after encountering families. For example, while straight a pattern of harassment or abuse related to employees routinely wear a wedding ring, sexual orientation, gender identity or HIV display pictures of their spouse and family status that made it difficult to perform the and discuss their private life with co-workers job effectively, or if the termination was in (from dating to cultural activities to political retaliation for complaining or speaking up involvement), when LGBT people do the about discrimination or harassing conduct. same, some co-workers may complain that

32 OUT AT WORK CHAPTER 3 WHAT TO DO IF YOU EXPERIENCE DISCRIMINATION

IF YOU GET FIRED OR want shared with prospective LAID OFF employers if they call. ◆ Ask your employer to put the ◆ Ask about continuing health reason you were terminated in insurance coverage for yourself writing. and your dependents under ◆ Obtain copies of your employ- COBRA or other laws. If your ment record, including evalua- partner or partner’s legal tions and disciplinary actions. children were covered under your insurance policy, their cov- ◆ Study your employee manual’s erage often will end on your last sections on employment termi- day of work unless your employer nation. If your employer did not has arranged for a different plan follow its own guidelines, you with the insurer. may be in a better position to contest or negotiate better ◆ Collect statements of co-workers terms for your termination. who may have witnessed discriminatory treatment against ◆ Consider reporting your termina- you and other LGBT or HIV- tion to your union if you have affected employees. one. ◆ Don’t make angry accusations ◆ If you are asked to sign any or threats, but you may want to paperwork, carefully read it and send a professional letter of consider consulting an attorney complaint to the company’s first because you may have human resources department, fewer options later. For example, especially if you know the you may be asked to sign a company has an equal severance agreement that employment opportunity officer includes a waiver of any future or ombudsman. If you are claims against your employer. considering a lawsuit, talk to an ◆ Request a letter of reference. attorney first, as your statements Try to negotiate about the can affect your claim. information you do or do not

these actions are inappropriate, offensive or corresponding to the gender they present contrary to their moral or religious views. because it may make some co-workers Some employers may support a co-worker’s uncomfortable. complaint or institute restrictive policies. In If your employer has an inclusive nondis- the same vein, employers may deny trans- crimination policy, it is much easier to bring gender workers the right to use restrooms hostile conditions to someone’s attention. But

LAMBDA LEGAL 33 if you feel isolated in your workplace, you the behavior to the next appropriate manager may feel more limited about your options. or to the human resources department and/or You may need to begin by reaching out to co- your union representative. As with other forms workers who are offended by any cruelty even of harassment and discrimination, copy and if they do not yet understand sexual orienta- maintain a record of any complaint you make. tion and gender identity issues. You may also If you cannot reconcile the problem at wish to seek outside support to learn how and your workplace, you may want to file a com- in what circumstances you can best stand up plaint with the U.S. Equal Employment for yourself when the need arises. Opportunity Commission (www.eeoc.gov) and/or with your state’s fair employment Sexual Harassment practices agency, if one exists.

Sexual harassment always involves unwanted Gender-nonconforming Conduct or or unwelcome sexual behavior. In its most Appearance obvious form, it occurs when an employee is required to provide sexual favors as a condi- Sometimes employees face discrimination tion of employment, compensation or job because of gender-nonconforming conduct or advancement. It can also include being sub- appearance or the perception by others that jected to sexual words or conduct that inter- they do not fit within cultural norms for fere with a reasonable employee’s ability to males and females. For example, employees do his or her job, particularly when the may face discriminatory actions or a hostile behavior is persistent and grossly offensive. work environment when supervisors or co- Inappropriate invitations, unwanted workers believe a male acts or looks effemi- touching, sexually explicit gestures, porno- nate or a female acts or looks masculine. graphic pictures, sexist jokes and sexual over- Transgender employees often face this type tones may constitute sexual harassment. The of discrimination. Lambda Legal believes laws prohibiting sexual harassment apply employees should be judged on their work equally to behavior between individuals of performance and not be required to fit the same or different sexes. within other people’s gender stereotypes. In some cases, employees who face this type of If you are the victim of sexual harassment discrimination can seek a remedy under laws on the job, you have options: If you feel safe and policies prohibiting discrimination on enough to do so, you can choose to confront the basis of sex or sexual orientation. the harasser and ask him or her to stop the behavior. It can be helpful to report any inci- dents of sexual harassment to your immediate OTHER IMPORTANT supervisor or to the human resources depart- JOB RIGHTS ment and/or your union representative, and to document the harassment and any steps you Violations of Privacy take to address it. Your employer needs to be aware of the harassment in order to take Earlier in this kit, we discussed privacy and action. Most workplaces have a sexual harass- confidentiality laws that protect employees ment policy that explains how to make a com- with HIV (pages 23-25) and highlighted plaint. If your supervisor is the harasser, report some of the inappropriate questions that

34 OUT AT WORK CHAPTER 3 WHAT TO DO IF YOU EXPERIENCE DISCRIMINATION prospective employers are not allowed to ask Honoring Religious Freedom and during interviews or as part of the applica- Workplace Diversity tion process (page 15). In addition, federal legislation like the 1988 Employee Polygraph Title VII of the Civil Rights Act of 1964 Protection Act severely limits an employer’s prohibits employment discrimination on ability to use polygraph equipment on the basis of religion. This means that all employees. But there has been a trend toward employees, including LGBT people and less privacy in the workplace. Some people living with HIV, are free to hold reli- employers routinely monitor employee tele- gious views without interference from their phone calls, emails and Internet usage. Some employers. However, it does not mean that conduct video surveillance of employees people in the workplace may freely express (even in locker rooms or restrooms) and hostile or discriminatory views that affect review computer files. Some employers the working conditions of others. In 2004 review their employees’ computer files, and even conduct physical searches as well as one appeals court ruled that an employee searches of their offices and possessions. disciplined for posting Biblical passages con- demning homosexuality in his cubicle did As part of their work, human resources not have a religious discrimination claim; personnel review and maintain current that is to say, accommodating his views employee records detailing benefits, Social would create undue hardship on his Security and family information. However, employer’s efforts to create a diverse, employers can also easily access additional nondiscriminatory workplace. In 2004 the confidential employment, financial and same court also rejected a religious discrimi- medical records about their employees from nation claim brought by a Christian funda- computer databases. Employees may also be mentalist supervisor who was fired after asked to take written "personality" tests that inappropriately expressing her religiously question them about very personal matters, based disapproval of her subordinate’s sexual including sexual orientation. Some of these orientation. tests may violate the law. The absence of laws on workplace privacy means that unscrupu- If you experience religiously-motivated lous employers and unethical individuals can harassment in the workplace, you may be collect and use this information for inappro- able to file a complaint if your employer has priate reasons as well. a nondiscrimination policy that covers sexual orientation, gender identity and HIV status. Employees with HIV also often experience If your employer encounters resistance from ostracism and invasions of privacy because of employees who claim that the employer’s ignorance about HIV. For disclosures made action violates their religious beliefs, please outside of the protections of the Americans contact Lambda Legal or suggest us as a With Disabilities Act (i.e., disclosure outside resource to your employer. of the hiring or reasonable accommodation process), your state’s HIV confidentiality law The false dichotomy between religious may not require that all employees at your rights and other forms of diversity rights job keep all information about your HIV is only one of many emerging workplace status confidential, so be very careful about issues facing the LGBT and HIV-affected disclosure. communities. Although this kit seeks to

LAMBDA LEGAL 35 inform you on as many topics as possible, you are encouraged to keep updated by visiting Lambda Legal’s website at www.lambdalegal.org.

36 OUT AT WORK RESOURCERESOURCE GUIDEGUIDE

LAMBDA LEGAL 37 38 OUT AT WORK RESOURCE GUIDE

NATIONAL RESOURCES leading legal rights organization dedicated to ending discrimination based on sexual orien- Lambda Legal tation, HIV status and gender identity and National Headquarters expression. Providing litigation, advocacy and 120 Wall Street, Suite 1500 educational work in all areas of gay, lesbian, New York, NY 10005 bisexual, transgender civil rights and the tel 212-809-8585 rights of people living with HIV, GLAD has fax 212-809-0055 a full-time legal staff and a network of coop- www.lambdalegal.org erating attorneys across New England Lambda Legal is a national organization Gay and Lesbian National Hotline committed to achieving full recognition of 2261 Market Street the civil rights of lesbians, gay men, bisex- San Francisco, CA 94114 uals, transgender people and those with HIV tel 888-415-3022 (administrative) through impact litigation, education and fax 415-552-5498 public policy work. Hotline: 888-THE-GLNH (888-843-4564) www.glnh.org American Civil Liberties Union – Lesbian [email protected] and Gay Rights and HIV/AIDS Projects 125 Broad Street, 18th Floor GLNH is a nonprofit organization that pro- New York, NY 10004 vides nationwide, free and confidential tele- www.aclu.org phone and email peer counseling, tel 212-549-2627 information and local resources. GLNH is open Monday through Friday 4:00 p.m. – The goal of the ACLU Lesbian and Gay 12:00 a.m. and Saturday 12:00 – 5:00 p.m. Rights Project is equal treatment and equal EST. The Gay & Lesbian Switchboard of NY dignity for lesbian, gay, bisexual and trans- Project can be reached at 212-989-0999, gender people. That means evenhanded treat- Monday through Friday 4:00 – 8:00 p.m. ment by the government, protection from EST, and Saturday 12:00 – 5:00 p.m. EST. discrimination in jobs, housing, hotels, The San Francisco office can be reached at restaurants and other public places, and fair 415-355-0999, Monday through Friday 5:00 and equal treatment for lesbian and gay – 9:00 p.m. PST. couples and families. The ACLU website provides online resources about privacy in the Gender Public Advocacy Coalition workplace, including a twelve-minute video (GenderPAC) entitled Through the Keyhole. 1743 Connecticut Avenue, NW 4th Floor Gay & Lesbian Advocates & Defenders Washington, DC 20009-1108 (GLAD) tel 202-462-6610 30 Winter Street, Suite 800 fax 202-462-6744 Boston, MA 02108 www.gpac.org tel 617-426-1350 [email protected] www.glad.org [email protected] The Gender Public Advocacy Coalition works to ensure that every American can par- Founded in 1978, GLAD is New England’s

LAMBDA LEGAL 39 ticipate in the workplace, the classroom and The Legal Aid Society-Employment Law the community regardless of whether they Center meet ideals for masculinity or femininity. 600 Harrison Street, Suite 120 GenderPAC’s Workplace Fairness Program San Francisco, CA 94107 works to end discrimination and violence tel 415-864-8848 caused by gender stereotypes by changing fax 415-864-8199 public attitudes, educating elected officials www.las-elc.org and expanding legal rights. Specifically, the [email protected] program supports major corporations in The LAS-ELC operates nationally and on adding gender identity/expression protections state and local levels, and litigates cases that to their EEO policies, as well as provides may reform laws and policies for the benefit important support for lawsuits in the federal of minority and low-income workers and and state appellate courts that can expand their families. The LAS-ELC also conducts legal rights. workshops, publishes educational materials and provides technical assistance to disadvan- Human Rights Campaign taged workers and their advocates. Some of 1640 Rhode Island Avenue NW their online resources include “The LGBT Washington, DC 20036-3278 Employment Project” and “Transgender tel 202-628-4160 Worker’s Rights.” fax 202-347-5323 TTY 202-216-1572 National Association of LGBT toll free 800-727-4723 Community Centers www.hrc.org 1325 Massachusetts Avenue NW, Suite 600 [email protected] Washington, D.C. 20005 The Human Rights Campaign seeks to tel 202-824-0450 improve the lives of GLBT Americans by fax 202-393-2241 advocating for equal rights and benefits in www.lgbtcenters.org the workplace, ensuring families are treated The National Association of LGBT equally under the law and increasing public Community Centers exists to support and support among all Americans through enhance lesbian, gay, bisexual and trans- innovative advocacy, education and gender community centers. The Association outreach programs. HRC’s WorkNet offers technical assistance, leadership training (www.hrc.org/worknet) is a national source and networking opportunities to centers in of information on workplace policies and all stages of formation, and is a national voice laws surrounding sexual orientation and for the LGBT community centers movement. gender identity. It includes extensive resource Their website includes a nationwide directory listings, a bibliography and the Corporate of LGBT centers, as well as a number of Equality Index, which gathers pertinent other informative resources. information about large corporations.

40 OUT AT WORK RESOURCE GUIDE

National Center for Lesbian Rights National LGBT Chamber of Commerce National Office Dupont Circle 870 Market Street, Suite 370 2000 P Street NW, Suite 300 San Francisco, CA 94102 Washington, D.C. 20036 tel 415-392-6257 tel 202-419-0440 fax 415-392-8442 fax 202-419-0443 www.nglcc.org NCLR is a progressive, feminist, multicul- [email protected] tural legal center with a primary commitment to advancing the rights and safety of NGLCC is specifically dedicated to lesbian, gay, bisexual, and transgender people expanding the economic opportunities and and their families through a program of liti- advancements of the LGBT business commu- gation, public policy advocacy and public nity. As a national umbrella organization, the education. NCLR litigates precedent-setting NGLCC is the premier advocate on behalf of cases at the trial and appellate court levels, LGBT owned businesses, professionals, advocates for equitable public policies students of business, and corporations that affecting the LGBT community, provides free share in our desire to expand the commu- legal information to clients and their legal nity's financial opportunities, economic advocates and conducts community educa- growth, continued innovation, and equality. tion on LGBT legal issues. Visit NCLR’s The NGLCC website includes a nation-wide website to view their online publications, directory of LGBT-owned and -friendly including: Gender Identity Discrimination businesses. and Employment Law, Legalizing Your Gender Identity and Transgender Equality: A Pride at Work/AFL-CIO Handbook for Activists and Policymakers. National Headquarters 815 16th Street NW National Gay and Lesbian Task Force Washington, DC 20006 1325 Massachusetts Avenue NW, Suite 600 tel 202-637-5085 Washington, DC 20005 fax 202-508-6923 tel 202-393-5177 www.prideatwork.org fax 202-393-2241 National Pride at Work is the newest con- TTY 202-393-2284 stituency group of the AFL-CIO (American www.thetaskforce.org Federation of Labor & Congress of Industrial [email protected] Organizations). The purpose of Pride at NGLTF is the national progressive organiza- Work is to mobilize mutual support between tion that works to build the grassroots the organized Labor Movement and the political power of the LGBT community to LGBT Community around organizing for win complete equality. The NGLTF website social and economic justice. For more infor- provides information on a variety of LGBT- mation see Pride at Work’s online publica- related issues, including civil rights and tions Domestic Partner Benefits, Worker’s domestic partnership. “The Domestic Rights and Transgender Issues. Partnership Organizing Manual for Employment Benefits” by Sally Kohn, is a comprehensive resource that can be down- loaded at www.ngltf.org/library/dp_pub.htm.

LAMBDA LEGAL 41 United States Equal Employment National Center for Transgender Equality Opportunity Commission 1325 Massachusetts Avenue, Suite 700 Headquarters: Washington, DC 20005 1801 L Street NW tel 202-903-0112 Washington, D.C. 20507 fax 202-393-2241 tel 202-663-4900 www.nctequality.org TTY 202-663-4494 [email protected] To be connected to a regional field office: The National Center for Transgender tel 800-669-4000 Equality is a national social justice organiza- TTY 800-669-6820 tion devoted to ending discrimination and www.eeoc.gov violence against transgender people through The EEOC was established by Title VII of education and advocacy on national issues the Civil Rights Act of 1964 to handle com- of importance to transgender people. By plaints of employment discrimination and empowering transgender people and our sexual harassment. The EEOC enforces job allies to educate and influence policymakers discrimination laws and provides oversight and others, NCTE facilitates a strong and and coordination of all federal equal employ- clear voice for transgender equality in our ment opportunity regulations, practices, and nation’s capital and around the country. policies. The EEOC website includes phone numbers and addresses for all of its regional Sylvia Rivera Law Project offices. Contact the EEOC for information 322 8th Avenue, 3rd Floor and instruction about filing a complaint. New York, NY 10001 tel 212-337-8550 fax 212-337-1972 TRANSGENDER SPECIFIC www.srlp.org RESOURCES The Sylvia Rivera Law Project works to guar- Center for Gender Sanity antee that all people are free to self-determine PO Box 30313 their gender identity and expression, regard- Bellingham, WA 98228 less of income or race, and without facing tel 360-398-2878 harassment, discrimination or violence. SRLP www.gendersanity.com works to improve access to respectful and [email protected] affirming social, health, and legal services for our communities. The Center’s “Transitions That Work” program is a consulting service for transsex- Transgender Law and Policy Institute uals who plan to transition on the job, their www.transgenderlaw.org co-workers and their employers. “Transitions [email protected] That Work” offers help in planning a successful transition, guidance for employers The TLPI is a nonprofit organization that dealing with transition issues and diversity advocates for transgender people by tracking training about transsexualism. legal and public policy developments and providing online resources to attorneys working on behalf of transgender people.

42 OUT AT WORK RESOURCE GUIDE

Their website offers a variety of resources, WORKPLACE EDUCATION including A Plan for Transition on the Job and AND INFORMATION Help for Employers with Transgender Workers. Common Ground Transgender Law & Policy Institute tel 303-941-2991 1800 Market Street, Suite 408 www.common-grnd.com San Francisco, CA 94102 [email protected] tel 415-865-5619 Common Ground is an education and con- tel 415-392-6257, ext. 308 sulting firm focused on workforce diversity www.transgenderlawcenter.org education. Common Ground offers work- [email protected] place sexual orientation education programs The Transgender Law Center (TLC) is a and consulting on employee policies, particu- nonprofit organization dedicated to engaging larly domestic partner benefits policies. in effective advocacy for transgender people. The TLC brings experts and advocates Out & Equal together to work on law and policy initiatives 155 Sansome Street, Suite 450 designed to advance transgender equality. San Francisco, CA 94104 Their website includes information on their tel 415-694-6500 current projects, as well as a list of nondis- fax 415-694-6530 crimination laws. www.outandqual.org [email protected] Transgender at Work Out & Equal is a national nonprofit organi- www.tgender.net/taw zation devoted to the lesbian, gay, bisexual [email protected] and transgender community in workplace The Transgender at Work project provides settings. In addition to providing diversity- resources for innovative employers who want training services, Out & Equal holds an to implement company employment policies annual Workplace Summit focused on that will help transgender employees be at educating human resources professionals and their most productive, and offers advice to developing employee resource group leader- those thinking of transitioning in the work- ship. Their website includes 15 steps to an place. Their website also lists contact infor- out and equal workplace. mation for educators who may be able to offer workplace presentations. ON THE WEB

Gay.com www.gay.com Business and Careers section of this site addresses issues gays face in the workplace. Users can also search the Corporate Pride Directory (co-sponsored by HRC) and use the job search engine.

LAMBDA LEGAL 43 Gay Financial Network www.gfn.com Walter B. Schubert, the first openly gay member of the New York Stock Exchange, founded GFN to provide business and investing information to gays and lesbians. The site also includes news headlines and a career search directory.

The Body www.thebody.com The Body is a website devoted to providing information about HIV/AIDS treatment and policies.

44 OUT AT WORK WORKSHEETSWORKSHEETS

LAMBDA LEGAL 45 46 OUT AT WORK WORKSHEETS

RATE YOURSELF AS A WORKPLACE ALLY

Which of the following supportive actions have you already taken, and where do you need to improve as an ally? After answering these questions, identify one to three ways you plan to be a more vocal and supportive workplace ally in the coming year.

NEEDS SUPPORTIVE ACTIONS YES IMPROVEMENT

I have educated myself about the forms of social, political, legal and economic discrimination that LGBT people and people living with HIV face every day.

I try to use gender-neutral terms such as “partner” or “spouse.”

I respectfully ask transgender co-workers which pronoun they prefer.

I interrupt homophobic and transphobic remarks and actions by making simple statements such as “Please don’t use that language around me,” “I find that disrespectful” or “I don’t agree with that.”

I speak up proactively for LGBT and HIV rights in the workplace.

I try to be a supportive witness. If I see discrimination or harassment occurring in my workplace, I document and protest it.

I encourage my employer and union to present workplace diversity workshops on sexual orientation, gender identity or expression and HIV.

I support LGBT co-workers’ right to form an employee resource group.

I support the right of differently abled co-workers to obtain reasonable accommodations. I do not complain that a co-worker is getting “special treatment” for an accommodation that is allowing them to work.

I am familiar with employee policies at my workplace and the mecha- nisms for changing them.

I welcome the partners, dates and families of LGBT people to all social events (company picnics, holiday parties, etc).

I actively advocate for change by fighting for the rights of LGBT co- workers and co-workers living with HIV at my workplace.

I actively advocate for change by fighting for the rights of LGBT co- workers and co-workers living with HIV on the city, state and federal level.

LAMBDA LEGAL 47 DETACH HERE DETACH 48 OUT AT WORK WORKSHEETS

IS THIS AN LGBT- AND HIV-FRIENDLY WORKPLACE?

EVALUATING YOUR CURRENT OR PROSPECTIVE EMPLOYER There are many factors to consider in determining if a workplace is right for you. Use this list of questions to assess your current workplace, or to evaluate a prospective employer. Not all of these factors will be of equal importance to everyone, so feel free to rank them according to what matters most to you. The following sources can be used to gather information about an employer. Use the methods with which you feel the most comfortable. If you are applying for a job, you might want to wait to ask more probing questions, or those that reveal you as a lesbian, gay man, bisexual, transgender person or as a person living with HIV, until after you are offered the position. > job announcements > company website > human resources department > employee resource group > policy handbook > current and past employees > your own impressions > internet searches > annual reports > LGBT professional assoc. > interview > HRC’s website (www.hrc.org/placestowork)

Note: If you are considering taking a job in a new state or city, you may first want to find out what employment laws exist in that area. (See the worksheet Tracking State and Local Laws & Policies.)

NAME OF EMPLOYER OR PROSPECTIVE EMPLOYER

POLICIES: YES NO N/A

Is there a nondiscrimination statement or policy that includes sexual orientation?

Is there a nondiscrimination statement or policy that includes gender identity?

Is there a nondiscrimination statement or policy that includes people living with HIV?

Does the employer provide equal health benefits for family members of employees with same-sex partners?

Do benefits that are made available to married employees — such as parental leave, bereavement leave and relocation benefits — also apply to employees with same-sex partners?

LAMBDA LEGAL 49 DETACH HERE DETACH PRACTICES: YES NO N/A

Does the employer regularly train managers and supervisors about how to carry out the nondiscrimination policies?

Is the training for managers mandatory?

Do employees receive diversity, sensitivity or other training that includes information about preventing discrimination of lesbian, gay, bisexual and transgender people?

Is the diversity/sensitivity/other training for employees mandatory?

Does the employer readily make reasonable accommodations for people with disabilities, including people living with HIV?

Is there an active LGBT employee resource group?

Does the employer have any gender-neutral restrooms available for employees and/or clients?

Has the employer participated in any social or political activities in support of the LGBT community or LGBT and HIV rights? (i.e., sponsored Prides, marches, rallies, walks, endorsed legislation)

Do they make charitable donations to LGBT or HIV organizations and/or causes?

Do they make charitable donations to anti-LGBT organizations and/or causes?

OVERALL IMPRESSION: YES NO N/A

Are you generally comfortable walking through the workplace and interacting with employees?

Is the staff diverse in other ways (e.g. women and people of color well- represented)?

Are supervisors and managers comfortable answering questions about their policies and practices?

50 OUT AT WORK WORKSHEETS

DOCUMENTING HARASSMENT AND DISCRIMINATION

INCIDENT SHEET Use this sheet to keep a written record of any instances of discrimination, whether you are subjected to it yourself or are a witness. Make a copy of this sheet and write down your experience as soon as possible. If there is a legal claim, other people will be able to read what you wrote, so don’t say anything that is inaccurate or that you wouldn’t want others to read later. Keep all of your Incident Sheets and supporting documentation in a safe place away from your workplace.

DATE AND TIME OF INCIDENT

LOCATION

PEOPLE INVOLVED:

NAME POSITION

In your own words, write a description of what took place, including: • What was said, who said it, when and where it was said, who was in the room or vicinity or heard it • Any different treatment (i.e., if heterosexual employees were treated differently in a similar situation) • Any procedures or policies that weren’t followed • Any reasons the employer gave for what happened • Timing (for example, if problems seemed to start after you came out to your boss or co- workers) (Attach additional sheets, if needed.)

SIGNATURE DATE COMPLETED

LAMBDA LEGAL 51 DETACH HERE DETACH WITNESSES:

NAME POSITION

HOME ADDRESS

HOME PHONE CELL PHONE

NAME POSITION

HOME ADDRESS

HOME PHONE CELL PHONE

NAME POSITION

HOME ADDRESS

HOME PHONE CELL PHONE

What attempts have you or others made to address the situation and when did these attempts take place?

Attach supporting documentation, including: • Copies or photographs of any offensive material • Statements of co-workers who may have witnessed discriminatory treatment against you and other LGBT or HIV-affected employees • Copies of any correspondence you sent to your employer to notify them of the incident or ask them to take corrective action • Copies of any responses from your employer • Copies of any relevant employment policies • If you are fired, documentation from your employer stating the reason you were fired • Copies of your employment record, including evaluations and disciplinary actions • Copies of any paperwork you are asked to sign such as a severance agreement

52 OUT AT WORK WORKSHEETS

TRACKING STATE AND LOCAL LAWS & POLICIES

There is no federal law that expressly forbids workplace discrimination against lesbian, gay, bisexual and transgender people, and state and local protections vary greatly. Follow these four steps to research and record the protections that do exist where you work.

STEP 1 Some states have banned discrimination based on sexual ARE THERE orientation and gender identify for public sector (state) employees. STATEWIDE More than one third of all states specifically ban workplace dis- NONDISCRIMINATION crimination in the private sector based on sexual orientation. And LAWS? only a handful of states ban discrimination based on gender identity in the private sector.

FIND OUT IF YOUR STATE HAS PUBLIC AND/OR PRIVATE SECTOR EMPLOYMENT PROTECTIONS BY USING THE “IN YOUR STATE” FEATURE ON LAMBDA LEGAL’S WEBSITE AT WWW.LAMBDALEGAL.ORG/OUR-WORK/STATES.

STEP 2 A growing number of city and local governments have enacted ARE THERE CITY additional policies and laws to provide protections for LGBT AND COUNTY employees. Some cities and counties have passed laws that ban NONDISCRIMINATION discrimination based on sexual orientation and gender identity. LAWS AND/OR In some cases, local government entities have made equal health EQUAL BENEFITS benefits available to domestic partners of all public employees. POLICIES? A smaller number of municipal governments have passed equal benefits ordinances requiring contractors to offer equal health insurance benefits to the domestic partners of their employees.

FIND OUT IF THERE ARE CITY AND/OR COUNTY PROTECTIONS WHERE YOU LIVE AND WORK BY USING THE HUMAN RIGHTS CAMPAIGN’S COUNTY AND CITY INTERACTIVE SEARCH TOOL IN THE “WORKPLACE” SECTION OF HRC’S WEBSITE AT WWW.HRC.ORG

STEP 3 Many states have laws that regulate who must be notified about ARE THERE STATE- HIV/AIDS cases and how the privacy of people living with HIV SPECIFIC HIV LAWS? must be protected.

TO FIND OUT WHAT LAWS IN YOUR STATE MAY IMPACT CONFIDENTIALITY AND PRIVACY IN THE WORKPLACE FOR PEOPLE LIVING WITH HIV, ENTER YOUR STATE OR CITY’S NAME AND “HEALTH DEPARTMENT” IN YOUR INTERNET SEARCH ENGINE. THE WEBSITE WWW.FINDLAW.COM ALSO HAS INFORMATION IN ITS STATE LAWS SECTION.

STEP 4 There may be efforts to enact laws or policies in your state, county WHAT LAWS HAVE or city related to workplace rights. BEEN PROPOSED?

TO LEARN ABOUT PENDING LEGISLATION OR POLICIES, CONTACT YOUR LGBT STATE ADVOCACY ORGANIZATION (WWW.EQUALITYFEDERATION.ORG) TO LEARN ABOUT PENDING EMPLOYMENT LEGISLATION AND ACTIVISM IN YOUR REGION.

LAMBDA LEGAL 53 DETACH HERE DETACH MY STATE: YES NO bans workplace discrimination of public employees based on sexual orientation bans workplace discrimination of public employees based on gender identity bans workplace discrimination of private employees based on sexual orientation bans workplace discrimination of private employees based on gender identity makes equal health benefits available to domestic partners of public employees regulates HIV/AIDS notification or confidentiality of people living with HIV that could relate to the workplace If Yes, describe:

has pending laws or policies regarding workplace equality If Yes, describe:

What group(s) are advocating for these laws?

MY COUNTY/CITY YES NO bans workplace discrimination of public employees based on sexual orientation bans workplace discrimination of public employees based on gender identity makes equal health benefits available to domestic partners of public employees has an equal benefits ordinance regulates HIV/AIDS notification or confidentiality of people living with HIV that could relate to the workplace If Yes, describe:

has pending laws or policies regarding workplace equality If Yes, describe:

What group(s) are advocating for these laws?

54 OUT AT WORK Lambda Legal is a national organization committed to achieving full recognition of the rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

Lambda Legal’s publications are made possible through donations from people like you. To make a difference today, please visit www.lambdalegal.org/donate. Contact Lambda Legal

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