- RECOMMENDATIONS
- Recommendations for Employers
- Hiring, Advancement, Compensation/Benefits
At the core of any effort to achieve equality for gay and lesbian lawyers is ensuring that sexual orientation is not an obstacle in the hiring process, in work assignments, in advancement, or in salary and other compensation such as bonuses and benefits. Implementation of the following recommendations would help promote equality of treatment in each of these areas.- Adopt, implement and enforce a written policy prohibiting employment discrimination based on sexual orientation
- Sensitize hiring committees about sexual orientation discrimination, and if possible, include gay and lesbian lawyers on such committees
- Notify gay and lesbian law student organizations and other gay and lesbian legal organizations of job openings
- Include information pertinent to gay and lesbian lawyers and law students in written recruiting materials
- Be aware of potential sexual orientation discrimination in lawyer evaluations and career advancement and sensitize evaluators to such discrimination
- Support involvement in gay and lesbian professional associations in the same manner as the employer treats involvement in other professional associations
- Make available to gay and lesbian lawyers, their partners and their partners' children the same health care, sick leave, parental leave and other benefits available to heterosexual lawyers and their spouses and children
- Ensure that all lawyers are aware of the existence of anti-discrimination and other human resource policies
If a legal employer has a policy that bars discrimination based on personal characteristics such as race, gender and ethnicity, it should include sexual orientation among the prohibited grounds.37 If a legal employer currently has no written anti-discrimination policy, it should adopt one, and include sexual orientation among forbidden grounds of discrimination. Such policies should prohibit discrimination in all aspects of employment, i.e., recruitment, hiring, work assignments, advancement and compensation. Harassment based on sexual orientation should also be prohibited.Such policies may have little effect unless they are accompanied by a strong enforcement mechanism, and an express commitment by management to use it. A grievance procedure should have reasonable timetables for the investigation and resolution of complaints, and should ensure anonymity at all times. If a firm has a single “ombudsman” to receive such complaints, that person should be one whom gay and lesbian lawyers can trust to discuss their concerns. If a firm utilizes a committee for that purpose, there should be at least one member with whom gay and lesbian lawyers feel comfortable. The enforcement mechanism should include remedial and/or disciplinary action for violations, and management should be willing to take such action when warranted.
As the Surveys indicate (see II.A, above), gay and lesbian applicants for lawyer positions are sometimes excluded from consideration simply because of their sexual orientation. Management should make clear to its hiring and recruitment committees and others responsible for hiring that such discrimination is impermissible. Diversity of membership on hiring and recruitment committees, including, when possible, openly gay or lesbian lawyers, should assist in preventing such discrimination and help promote sensitivity to potential sexual orientation discrimination in the hiring process.Lawyers and others who conduct interviews for job openings should be made aware that they are not permitted to ask questions about a job candidate's sexual orientation, just as they are not permitted to ask about inappropriate matters such as the candidate's age, marital status, religion, or plans about having children.
Many large law firms and other legal employers actively recruit women as well as racial and ethnic minorities from law schools.38 For the same reasons, such employers should also solicit applications from gay and lesbian law students. A simple way to do so is to send notices of job openings to gay and lesbian law student organizations and invite their members to apply. Many, if not most, law schools have gay and lesbian law student organizations. To the extent that a legal employer sends notices of job openings to minority legal and bar organizations, it should also send them to gay and lesbian legal and bar organizations, such as GAYLAW. Similar gay and lesbian voluntary bar organizations are located in New York, San Francisco, Los Angeles, Boston and Philadelphia, among other cities
When an employer sends job notices or other recruiting materials to law schools and elsewhere, those materials should contain information that will help gay and lesbian law students discern whether a particular legal employer is “gay friendly.” This information can include the number of openly gay and lesbian lawyers in the employer's establishment (if known); the existence of an anti-discrimination policy; the availability of domestic partnership benefits; and, to the extent that the legal employer provides names and phone numbers of other minority lawyers, the names and phone numbers of openly gay and lesbian lawyers in the organization who can answer questions or discuss issues that an applicant might not feel comfortable addressing in an interview. If no openly gay or lesbian contacts are available, it would be helpful to designate a “gay sensitive” contact to answer such questions.A simple way for legal employers to provide this information is by filling out and returning National Association of Law Placement forms sent by law schools and by NALP itself. These forms typically ask for the number of openly gay and lesbian lawyers in the legal workplace, the existence of health care and other benefits, and the existence of anti-discrimination policies.
The Surveys have shown the existence of sexual orientation discrimination when it comes to lawyer promotions and career advancement, including partnership decisions. Management should make clear that such discrimination will not be tolerated. Many firms use associate evaluation committees to evaluate the performance of associates and make partnership recommendations. As with hiring committees, diversity of membership on such committees, including, when possible, openly gay or lesbian lawyers, should help prevent sexual orientation discrimination and promote sensitivity to potential sexual orientation discrimination in associate evaluations and partnership decisions. The members of such committees, and others who evaluate the performance of lawyers, should be made aware that a lawyer's sexual orientation is irrelevant in the evaluation process.
Gay and lesbian professional organizations such as GAYLAW, the Potomac Executive Network (PEN) and the National Lesbian and Gay Legal Association (NLGLA) provide social and business-networking opportunities that can benefit both the individual lawyer and the legal employer. If an employer pays for lawyer membership in professional associations, including voluntary bar associations, the employer should similarly pay for membership in gay and lesbian professional associations. Legal employers should also support activities of these organizations on the same basis that they support activities of other professional associations in which their lawyers are involved, for example, by buying tables at fundraising events.
In most workplaces, if not all, a lawyer's compensation includes certain benefits, such as health care coverage, in addition to his or her salary. Those benefits often extend to a lawyer's spouse and children. To be treated equally with their heterosexual colleagues, gay and lesbian lawyers who have same-sex partners should receive, as part of their compensation package, the same benefits for such things as health care coverage and parental leave as are accorded heterosexual lawyers with respect to their spouses and (where applicable) their spouses' children. Indeed, the D.C. Human Rights Act specifically prohibits discrimination on the basis of both sexual orientation and marital status with respect to an employee's “compensation, terms, conditions, or privileges of employment.” D.C. Code § 1-2512(a)(1). Thus, in addition to prohibiting differential treatment of gay and lesbian employees as compared to heterosexual employees, the Act also bars differential treatment of married and unmarried employees.39 In addition, the D.C. Family and Medical Leave Act, D.C. Code § 36-1301 et seq., more fully discussed below, applies to the families of gay men and lesbians, as well as to the families of heterosexuals.While it is beyond the scope of this Report to catalogue all of the employment benefits that may be available in the workplace, the following are typical:
- Health care benefits: The partners of gay and lesbian lawyers and the
children of their partners should be eligible for health care coverage on the same
basis as the spouses, biological children, adopted children and step children of
married lawyers. Indeed, whether or not required by local law, “domestic partner”
coverage is now provided by numerous employers throughout the private sector,
including many of the country's leading corporations.40 To meet the demand for
this coverage, many insurance companies now provide domestic partner health
care coverage, and employers should consider replacing an insurance carrier that
refuses to provide such coverage.41 While cost should not be a factor in achieving
equality of treatment (nor is it a defense to discrimination under the D.C. Human
Rights Act 42), it is worth noting that, as published studies have shown, the
addition of domestic partner coverage to an employer's benefits plan is not
costly.43
Parental leave/child care: Parental leave and child care policies should apply without regard to the sex, marital status, or sexual orientation of the lawyer, and should not be dependent on the biological relationship between parent and child. For example, if the partner of a gay or lesbian lawyer has given birth to or adopted a child, that lawyer should be permitted to take the same parental leave and/or child care leave available to a heterosexual lawyer whose spouse (or partner) has given birth to or adopted a child.44
Bereavement and caretaking leave: To the extent that an employer has policies permitting lawyers to take leave in the event of the death of a spouse or child, or to care for a family member, these policies should also allow leave to be taken for the care of both same- and opposite-sex partners and non-biological children.45
Relocation benefits: To the extent that an employer pays the moving expenses for the spouses or partners of heterosexual lawyers, it should also pay those expenses for the partners of gay and lesbian lawyers.46
Pension and survivor benefits: Similarly, and to the extent legally possible, the partners of gay and lesbian lawyers should be entitled to receive the same pension, death or other survivor benefits as do the spouses of heterosexual lawyers.
The legal employer should make the existence of its anti-discrimination policy and other human resource policies such as domestic partner benefits known to all lawyers. In addition to educating lawyers and staff about the presence of gay and lesbian lawyers in the workplace, such action obviates the need for gay and lesbian lawyers to “out” themselves by inquiring whether such policies exist. These policies should be included in new lawyer orientation packets, employee handbooks, policy manuals, and, where applicable, in recruiting materials sent to law schools.
- Hiring, Advancement, Compensation/Benefits
- Recommendations for Employers
- Such a formal policy would, in much of the Washington, DC metropolitan area, reinforce a prohibition already embodied in applicable law, letting employees know their rights and sending the message that their employer is committed to a policy of nondiscrimination and equal treatment in the workplace
- See generally, National Association of Law Placement (NALP) 1998-1999 NATIONAL DIRECTORY OF LEGAL EMPLOYERS. NALP seeks to obtain employment and other information from legal employers by asking them to fill out a multi-page form. The returned forms are then bound in a large volume and sent to law schools. The form asks, among other things, the number of lawyers employed by the legal employer, the salary and benefits for associates and the areas of practice. The form also asks the legal employer to list the number of minority lawyers it employs, including openly gay lawyers, and requests information on minority recruitment efforts. The vast majority of the nearly 1300 legal employers reflected in the NALP 1998-1999 DIRECTORY described efforts to recruit minorities, although most do not specify whether the minorities include gay and lesbian law students. Id.
- We are not aware of any decisional authority as to whether an employer that provides health care and other benefits to, or in relation to, the spouses of married heterosexual employees but denies them to the partners of gay and lesbian, or unmarried heterosexual, employees would violate the Act. However, the statutory text does not readily lend itself to any other reasonable reading. For this reason, in addition to fundamental fairness, employers should provide the partners and families of their unmarried lawyers—gay, lesbian and heterosexual—with the same benefits they provide to or for the spouses and families of their married lawyers.
- Employers offering domestic partner coverage include (but are certainly not limited to): American Express, American Telephone & Telegraph Co. (AT&T), Apple Computer, Inc., Federal National Mortgage Association (Fannie Mae), Harvard University, HBO/Time-Warner, Inc., Levi Strauss & Co., Lotus Development Corp., Massachusetts Institute of Technology (MIT), MCA, Inc., Microsoft Corp., National Public Radio (NPR), Oracle Corp., Principal Financial Group Inc., Public Broadcasting System (PBS), Charles Schwab & Co., Inc., Showtime Networks Inc., Stanford University, Starbucks Coffee Co, University of Chicago and Viacom International, Inc. See Ed Mickens, THE 100 BEST COMPANIES FOR GAY MEN AND LESBIANS (1994).
- Some insurance carriers providing domestic partner coverage attempt, through the employer, to impose burdens on gay and lesbian employees seeking such coverage for their partners that are not imposed on heterosexuals seeking coverage for their spouses. For example, a gay employee may be asked to sign an affidavit that he and his domestic partner are financially interdependent in a number of ways, such as through a joint mortgage, joint credit card, etc. Heterosexual employees are not typically required to undertake such financial obligations as a prerequisite for obtaining health insurance coverage for a spouse. The Task Force recommends that an employer maintain a uniform policy for all of its employees when it comes to spousal/domestic partner coverage, and not impose on their unmarried employees (be they heterosexual, gay or lesbian) any burdens not imposed on married employees as a prerequisite for obtaining health insurance coverage for one's partner or for any other employment benefit. If an employer accepts a heterosexual employee's word that he or she is married, representation that an unmarried employee is in a comparable relationship should equally suffice for domestic partner coverage.
- See D.C. Code § 1-2503(a)(1991).
- See, e.g., Domestic Partner Benefits Cost Same as Heterosexual Married Couples, GANNETT NEWS SERVICE, July 22, 1997 (July 1997 report by the Employee Benefit Research Institute found that “[e]mployers currently offering benefits to domestic partners have not experienced higher risks or costs in their health insurance coverage than they have with legally married spouses”; KPMG Peat Marwick's annual health benefits survey found that “[t]he difference in cost between firms offering and denying this type of coverage appears slight”).
- Regardless of whatever parental leave policies an employer may have, the D.C. Family and Medical Leave Act (DCFMLA), D.C. Code § 36-1301 et seq.(1997), requires that an employee be permitted to take up to 16 workweeks of leave during any 24-month period for, among other events, “the birth of a child of the employee,” the “placement of a child with the employee for adoption or foster care,” or the “placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility.” D. C. Code § 36- 1302(a)(1997).
- At a minimum, the DCFMLA requires that an employee be allowed to take up to 16 workweeks of leave during any 24-month period for “The care of a family member of the employee who has a serious health condition.” D.C. Code §36-1302(a)(1997). The Act defines the term “family member” as: 1) a person to whom the employee is related by blood, legal custody or marriage; 2) a child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility or 3) a person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship. D.C. Code §36-1301(4)(1997). This definition unequivocally embraces domestic partners of gay and lesbian lawyers.
- Neither Survey specifically inquired into the existence of relocation benefits or pension benefits, discussed below. However, the same premise of equal treatment and compensation applies to these benefits as it does to the others.
