Say No to Employment Discrimination

by Joan Pynes

As the demographics of American society change, so will the composition of the workforce. Women, persons of color, persons of different ethnic and religious backgrounds, persons with physical and mental disabilities, homosexuals, and transgendered individuals are all likely to be applicants and employees.

Federal laws are clear in regard to prohibiting discrimination on race, religion, sex, national origin, age, and disability. No federal laws presently exist that prohibit discrimination on the basis of sexual orientation. On November 7, 2007, the Employer Non-Discrimination Act (ENDA) was approved by the U.S. House of Representatives. The vote, 235 to 184, marks the first time that either chamber of Congress has passed employment protections based on sexual orientation. At this time, however, it has not been voted on by the United States Senate nor signed into law by the President. It defines sexual orientation as “lesbian, gay, bisexual, or heterosexual orientation, real or perceived, as manifested by identity, acts, statements, or association.” ENDA extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age and disability to sexual orientation. If the act were to be passed, it would apply to private employers with 15 or more employees, as well as employment agencies and labor organizations, civilian federal employees, including Congress, the White House, and the Executive Office of the President would be generally covered. It prohibits public and private employers, employment agencies and labor unions from using an individual’s sexual orientation as the basis for employment decisions, such as hiring, firing, promotion or compensation. It provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII and the Americans with Disabilities Act. It also would apply to employees of state and local governments.

Exemptions to ENDA include businesses with fewer than 15 employees. It does not apply to the uniformed members of the armed forces (the bill doesn’t affect the “Don’t Ask, Don’t Tell” policy) and exempts veterans’ preferences. The act would exempt tax-exempt “bona fide private membership” clubs and all religious organizations, which is defined to include religious educational institutions. The law explicitly states that employers will not be required to provide domestic partnership benefits. Originally, ENDA included a provision that would also prohibit discrimination on the basis of gender identity or gender expression often referred to as transgendered but its elimination was necessary to obtain the support of many of the 235 members of the U.S. House of Representatives who voted to support ENDA.

When confronted with sexual orientation discrimination and transgendered discrimination, nonprofit managers find themselves in a complex legal environment. Many states and local governments have included homosexuals and transgendered individuals in their fair employment practices statutes, despite no federal legislation defining a national standard. As a result, nonprofit managers face a patchwork of state and local laws, executive orders, and judicial and commission decisions barring such discrimination. Nonprofit employers need to make sure they are complying with state and local laws in regard to their employment decisions.

Twenty-five percent of Fortune 500 companies include gender identity in their written nondiscrimination policies. The figure has risen dramatically from three years ago when seven percent of Fortune 500 companies could claim such a policy and it is expected to grow (Simanoff, 2007). Two reasons are commonly cited. First, businesses recognize the value of a diverse workforce and want to recruit and retain talented workers; and second, homosexual and transgendered workers are speaking up and asking employers for equal protection. When employees aren’t worried about being fired for reasons not related to their workplace performance, they’re more productive and effective. Protections are found in financial services, insurance companies, retailers, airlines, communications, and a brewery such as Anheuser-Busch. The following companies provide protections: Bank of America, Citigroup, JPMorgan, Chase and Company, MetLife, SunTrust Banks, Best Buy, Borders Group, GAP, Nordstrom, Staples, Walgreens, Sears Holding Corp, AMR Corp, Southwest Airlines, US Airways, Merck & Co., and Clear Channel Communications.

At a time when nonprofit workforces are facing significant retirements, it is important that they do not lose quality employees and potential employees due to discrimination. As it is, the nonprofit sector often has trouble competing with private employers. Qualified individuals may seek out progressive private sector organizations for employment opportunities rather than nonprofits that offer no protection against discrimination.

About the Author

Joan E. Pynes is a professor of Public Administration at the University of South Florida. She is the author of Human Resources Management for Public and Nonprofit Organizations (2004, third edition underway), published by Jossey-Bass, Inc., her scholarship is in nonprofit and public sector management.

Information about her book and where to purchase it can be found here.