Firms rush to comply with gay-rights law

Companies should ensure policies are legal, lawyers say

Indianapolis Star
By Dana Knight
12/26/05

Just Hair owner Zach Adamson didn't have to comb through his employee handbook to make sure company policies were in line with the revised city ordinance banning discrimination against gays and lesbians in the workplace.

He's offered that protection to employees at his hair salon for eight years.
"Of course, we already cover that," said Adamson, who is gay and praised the new law in between haircuts at his business on East Ohio Street. "The scary thing about it is most people thought this protection was already there at all companies."

Not so. Many Indianapolis employers found themselves scrambling last week to see what they need to do to comply with the new law, officially called Proposal 622, passed Monday by the City-County Council. When Mayor Bart Peterson signed off on it Thursday, the ordinance immediately went into effect.

The new law revises the city's Human Rights Ordinance, adding protection based on a worker's sexual orientation or gender identity.

Many law firms swiftly sent notes to clients outlining detailed steps to make sure their policies are legal. Ice Miller's note boldly warned: "The following steps should be taken now."

"The majority of employers in Indianapolis will find they need to revise their policies," said Michael Blickman, a labor and employment attorney with Ice Miller. "While some employers have prohibited sexual orientation discrimination, I am confident that very few -- perhaps only a handful -- include gender identity as a protected category."

The law does not require employers to include discrimination bans in company handbooks. The ordinance itself effectively covers all employees working at Indianapolis companies with six or more workers, with exceptions for religious institutions and certain nonprofits.

"Still, it would seem to me employers will want to amend their policies," said Bill Groth, a labor and employment attorney with Fillenwarth Dennerline Groth & Towe in Indianapolis. "It gives them evidence if somebody were to charge them with a violation of the law."

In other words, the policy would give the company a potential legal defense should it find itself in court faced with discrimination charges.

While there are no comprehensive statistics on how many companies in the city offer sexual orientation protections, the Human Rights Campaign, which tracks employers who do, reports 20 Indiana-headquartered companies in its database and more than 2,200 nationwide.

The number of companies that include transgender, or gender identity, protection is so low that the organization, which works to protect the equal rights of gays, lesbians, bisexuals and transgenders, doesn't track it.

Celadon Trucking in Indianapolis doesn't include either protection in its employee handbook, for example.

"It hasn't been intentional," said spokesman Craig Koven, adding that the company already operates as if the protection is there. "You put skills and ability to contribute to successes above everything else."

Celadon will be adding language to comply, Koven said.

"Right now, there is a truck driver shortage," he said. "We are eager to hire anyone who meets our driving standards."

Making policies legal is the easy part for employers, according to Blickman. Simply review the current writings and add sexual orientation and gender identity to the areas already protected by law, like race, religion, gender and disability.

The part that may be tougher, experts say, is explaining the changes to management and employees.

Blickman suggests including the revisions in training programs already in place.

Employers need to be sure that workers know the proper way to act and that management is aware of the appropriate reasons to let a worker go, he said.

The policies may seem obvious, but workers must be reminded that gay jokes could now make the company vulnerable to lawsuits. And the protection of gender identity may present tricky questions.

Not only that, but if the company institutes a specific policy banning discrimination based on sexual orientation or gender identity in its handbook, workers must be reminded they could be fired for violating the policy. Employers can find tips on avoiding discrimination lawsuits at the Human Rights Campaign Web site.

The concept behind Indianapolis' new ordinance would have helped Stephanie Mineart, 37, Indianapolis, tremendously as a worker fresh out of college in the early 1990s.
She went to work for a small printing company and after nine months on the job told a co-worker she was a lesbian.

"A couple of days later, the owner of the company came to me and said, 'We don't want people like you working for us,' " said Mineart, who now works as a Web page developer at Pearson Education, which has a policy banning discrimination based on sexual orientation.

Until now, if gay employees didn't have such a rule at work, they had no protection from harassment.

"If an employer came to us and said, 'We fired him because he's gay,' the game would be over," said Michelle Eisele, an attorney with the Equal Employment Opportunity Commission in Indianapolis.

Because the EEOC is a federal agency and operates under federal laws, which don't include protection for workers based on sexual orientation or gender identity, it hasn't been able to help Indianapolis workers who felt discriminated against.
Eisele estimates less than 1 percent of the discrimination complaints her office gets are based on sexual orientation.

That doesn't mean the cases aren't out there, says Bil Browning, who has felt the hatred of discrimination firsthand.

Sitting in a staff meeting at a former workplace where employees were encouraged to suggest ways to make the company better, he made an unintentional error.

"I said they should add a sexual orientation nondiscrimination policy, and the next day I was let go," said Browning, who led the charge to revise the Human Rights Ordinance as the Region 8 chair of Indiana Equality, an organization that fights for equality and justice for lesbian, gay, bisexual and transgender Hoosiers.

Some employers already have instituted policies to prevent discrimination.

At JPMorgan Chase, protection based on sexual orientation and gender identity has been in place for at least six years.

"It's good for business. It's good for diversity, and it makes for a strong work force,'' said spokeswoman Nancy Norris.

All five of Indiana's Fortune 500 companies have protection for lesbians and gays, including WellPoint, which also offers domestic partner benefits.

"We firmly believe that our employee population should reflect the diverse customer base we serve," said James Kappel, a vice president in corporate media relations at WellPoint.

Having such an ordinance will let the city attract the nation's top talent, said Keith Washington, co-owner of Mass Ave. Video Store, the largest independent lesbian and gay-friendly video store in the city.

All but one of the Fortune 50 companies and 420 of the Fortune 500 companies already offer this protection.

Good companies want to operate in a city that aligns with their beliefs, Washington said.

"It lets the state and the world know we are a world-class city," he said. "We'll be able to attract world-class companies and organizations to set up shop."