Chapter 10
Affinity Orientation
Discrimination
McGraw-Hill/Irwin
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.
Learning Objectives
 Relate the history of the modern gay rights
movement
 Name the states that include gays and lesbians
in their antidiscrimination laws as well as Title
VII’s position
 Give the pros and cons of employers being
inclusive of gay and lesbian employees
10-2
Learning Objectives
 Discuss how some courts have circumvented
the exclusion of gays and lesbians from Title VII
coverage
 Identify whether same-gender sexual
harassment is covered by Title VII
 Discuss the workplace issues involving
transgenders
10-3
Learning Objectives
 Identify some of the employment benefits issues
for gays and lesbians
 List some ways that employers can address gay
and lesbian issues in the workplace
10-4
Introduction
 Affinity orientation: Whom one is attracted to
for personal and intimate relationships
 Affinity orientation pushes a lot of buttons in
society and the workplace
 It is an issue all across the world
 Vast implications for people’s everyday lives
10-5
Introduction
 Personal beliefs must not affect workplace
behavior
 May lead to employer liability
10-6
States that Prohibit Discrimination on the Basis of
Affinity Orientation or Gender Identity
California
Colorado
Connecticut
Delaware
Hawaii
Illinois
Iowa
Maine
Maryland
Massachusetts
Minnesota
New
Hampshire
New
New
New
Jersey
Mexico
York
Nevada
Oregon
Rhode Island
Vermont
Washington
Wisconsin
Washington,
D.C.
10-7
Historical Issues
The impact of AIDS in society and in the workplace
The military’s “don’t ask, don’t tell” policy
The 1993 March on Washington for Lesbians, Gays, and Bisexuals
President Bill Clinton voices support for gays (1992)
Clinton’s support for the Employment Nondiscrimination Act [ENDA]
Clinton’s appointment of over 150 gays and lesbians in his administration
Colorado’s attempted constitutional ban on protection for gays and lesbians
10-8
Out of the Closet
 The resistance at Stonewall in 1969
 Gay Pride Month
 Employment Non-discrimination Act (ENDA)
 Not yet passed by Congress
 Extends Title VII’s reach to include discrimination on
the basis of affinity orientation
10-9
Out of the Closet
 Company support of gay and lesbian events
 Gay Pride
 Domestic partnership benefits
 National Coming Out Day
 Base workplace decisions solely on an
employee’s ability to perform the job
10-10
Out of the Closet
 Affinity orientation is not covered under Title VII
 Discrimination is prohibited under
 Local ordinances or executive orders
 State laws
 Every state in the union has some form of job
discrimination protection for gays and lesbians
 Gender identity statutes: Laws providing
protection for transgenders
10-11
Out of the Closet
 Other bases for discrimination claims
 First, Fifth, or Fourteenth Amendments of the U.S.
Constitution
 Constitutional right to privacy
 Civil tort actions
 Gender stereotyping – liability for gender
discrimination
10-12
Affinity Orientation as a Basis for
Adverse Employment Decisions
 Employer concerns if the employee:
 Is gay or lesbian
 Has primary relationships with those of the same
gender
 Exhibits inappropriate workplace behavior
 Wears clothing, jewelry, or make-up in violation of
workplace grooming codes
 Is in the presurgery adjustment stages of GR surgery
 Undergoes gender reassignment surgery
10-13
Affinity Orientation as a Basis for
Adverse Employment Decisions
 Employers should
 Make a distinction between status or orientation and
inappropriate activity
 Actions should not be singled out based solely on the
actor’s orientation
10-14
Affinity Orientation as a Basis for
Adverse Employment Decisions
 Employee may fit into more than one category
 Liability will ensue if one or more of the categories are
protected under Title VII
 Gender-based stereotypes
10-15
Same-Gender Sexual Harassment
 U.S. Supreme Court
 A cause of action for sexual harassment even if both
parties are of the same gender
 Basis for harassment must not be the affinity
orientation of the harassee
10-16
Gender Identity Discrimination
 Gender dysphoria
 Gender identity not a protected category under
Title VII
 Protection under some state and local laws
 Human Rights Campaign
 The number of Fortune 500 companies with gender
identity protection in their policies has quadrupled just
since 2003
10-17
Workplace Issues for Gays and
Lesbians
 Nondiscrimination policies
 Bereavement leave for domestic partners
 Vacation leave transfer
 Benefits for domestic partners
10-18
Domestic Partner Law Debate
 Domestic partner law protects personal wishes
such as
 The right to have your partner visit if you’re
hospitalized
 The right to have your partner act as guardian if
you’re incapacitated
 The right to leave your money and property to who
you wish in your will with no court battles from
relatives
10-19
Domestic Partner Law Debate
 Growth of benefits
 Opposing view
 Law will legitimize cohabitation
 Domestic partnership will weaken the institution of
marriage
 Man/woman relationship is best for society
10-20
Employment Benefits
 Benefits that other employees take for granted
are major hurdles for gays and lesbians
 Five states allow same-gender marriages
 Registration of unmarried couples as domestic
partners
 Living together for a specified length of time
 Given mutual aid and support
10-21
Employment Benefits
 Nearly half of the Fortune 500 companies offer
domestic partner benefits
 90 percent cover a domestic partner’s dependents or
children
 60 percent extend adoption assistance to domestic
partners
 72 percent also allow employees to take extended
family leave to care for a domestic partner or their
dependents
10-22
Employment Benefits
 Companies use benefits as a marketing tool to
attract and retain gay and lesbian employees
 Single-gender couples with children
10-23
Management Considerations
 Employers who prefer the benefits of a diverse
workplace
 Deal with affinity orientation issues in a less restrictive
manner
 Not have policies that have a hard-and-fast rule of “no
transgenders, gays, or lesbians allowed”
10-24
Management Considerations
 Actions of gays or lesbians should be dealt with
as legitimate workplace issues
 Affinity orientation or gender identity is irrelevant to
the activity
 Gender identity and affinity orientation policies
should come from the top
10-25
Management Considerations
 Employers who do not wish to have
antidiscrimination based on affinity orientation
and gender identity
 Liability depends on the jurisdiction in which the
employer is located
 Employer’s personal choice
 May wish to take an adverse workplace decision to
court to maintain maximum control over areas not as
heavily regulated as the other protected categories
10-26
Management Considerations
 Some employers take a middle-ground position
 No policies to support or prohibit discrimination
 Deal with issues on a case-by-case basis
 Laws are changing every day
 Employers should consider possible
repercussions other than liability under Title VII
10-27
Management Tips
 Hire using only relevant, work-related criteria
 Keep inquiries about applicants’ personal lives
minimal and relevant
 Have a policy ensuring all employees respect in
the workplace
 Policy should protect everyone from unsolicited
negative statements about immutable and other
characteristics
10-28
Management Tips
 Take prompt action whenever there are
complaints or violations of the policy
 Proactively decide what position to take on
affinity orientation-related issues
 Be aware of the potential impact on gays and
lesbians of workplace policies
 Ensure that policies inclusive of gays and
lesbians, ensure are fair and handled evenly
10-29