Jason Collins’ decision to come out as the first gay male athlete who is active in a major-league sport generated mostly cheers from league executives, players, and fans this week. But it remains to be seen how the move will affect the career of the 12-year veteran of the National Basketball Association, now a free agent. After all, he essentially came out at the office, and there aren’t as many rules protecting homosexual workers as you might think.
Carmelyn Malalis, who co-chairs Outten & Golden’s Lesbian, Gay, Bisexual, and Transgender Workplace Rights Practice Group, notes that we don’t yet live in a perfect world. Discrimination against homosexuals is still prevalent in the U.S. And in most states there is no clear guidance for employers as to how to handle it in the workplace.
But Malalis was pleased by Collins’ step. "I think particularly in the area of men’s sports, people have been talking about it as the final frontier of coming out," she says.
The New York lawyer represents plaintiffs in employment matters. She has also seen men reluctant to come out in other sectors, particularly the entertainment industry, advertising and financial services. Generally speaking, however, the reality for employers, she says, is that "more people are coming out in the workplace."
There is currently no federal law prohibiting workplace discrimination based on sexual orientation. The Employee Non-Discrimination Act (ENDA) has been introduced without success in Congress almost every session since 1994; the latest version of the proposed legislation was introduced in the House and Senate in April.
Malalis’ advice to employers would be to proceed as if such a law were already in effect. "Employers, to be on the safe side, should be thinking about ENDA as being an eventuality," she says.
In a growing number of jurisdictions, state laws already offer protections that the federal law does not. According to the Human Rights Campaign (HRC), 21 states and the District of Columbia currently have laws prohibiting discrimination based on sexual orientation.
"Passing ENDA would be a wonderful moment for LGBT employees, and for the country generally, because it would provide for a lot more clarity and consistency," says Malalis.
From the corporate perspective, she says, it’s onerous to maintain different types of benefit systems for employees in different states, and anyway, "a lot of employers generally want to do the right thing."
Laura Maechtlen is a partner with Seyfarth Shaw and serves as a co-chair of the firm’s Diversity Action Team Executive Committee. In California, where she practices, the state’s definition of "sex" for discrimination purposes includes gender, gender identity and gender expression. She describes the language as broad compared with that used by other states.
"What we see is essentially a patchwork of different laws on the state level that do or do not protect based on sexual orientation and gender identity," says Maechtlen.
"A lot of the LGBT community and the rest of America have focused so much on the [gay] marriage debate," she says, "that we tend to forget that in half of the states in the country, an employee can be fired just for being a lesbian, gay or transgender person."
According to HRC, hundreds of companies already have policies protecting their LGBT employees. As of December 2012, 434 (88 percent) of Fortune 500 companies had nondiscrimination policies including sexual orientation.
That number doesn’t surprise Maechtlen. To avoid carve-outs, many of her clients already adopt comprehensive policies that apply to employees in all of the states where they operate.
Attracting and retaining a diverse workforce are key incentives for creating broad antidiscrimination policies—and not just with respect to homosexual workers. There are several groups that currently have greater protection at the state level than they do under federal nondiscrimination law. California, for example, prohibits discrimination based on political affiliation, marital status or testing positive for HIV.
Workplace policies should first take into account the laws in the jurisdictions where the company does business. If employers opt to include protections beyond what’s required by law, beware that the policy might create a basis for an employee to bring a claim down the road, she says. "The employee might allege breach of contract," she says, if the policy isn’t adhered to.
"The policies provide a framework for companies to focus their managers and HR professionals on what’s really important," says Maechtlen, "which is job performance."