You’ve probably heard the news by now. (And if you haven't, you’re far too wrapped up in the race for the Democratic nomination.) The California Supreme Court recently issued a significant ruling about same-sex marriage – holding that it’s against the state constitution to deny the benefits of marriage to people based on sexual orientation. (The decision is based in part on a 1948 state case striking down California’s anti-miscegenation laws, which essentially banned the mixing of different racial groups – in marriage, cohabitation, sexual relations, etc.)
So California and Massachusetts are leading the way on recognizing same-sex marriage. And where they go, others will follow – notably New York state, which just last week pronounced that it will recognize same-sex marriages performed in jurisdictions such as California and Massachusetts. (New York To Back Same-Sex Unions From Elsewhere).
No doubt this decision raises a bunch of interesting legal questions, and will mean a lot of work for employers and government agencies that need to get systems in place to accommodate the change — including everything from benefits administration to employment policies. If you want a great summary of the most important impacts, Littler Mendelson offers a very helpful piece: California Supreme Court Opens the Door on Same-Sex Marriage.
But What About the Impact to the Working Environment?
What most articles you’ll read on this subject don’t cover, is the impact to the work environment. While employees don’t stand around the water cooler talking about the latest and greatest case developments — unless you work in a law firm — employees do take an interest when the developments are as big (and as personal) as this one.
Same-sex marriage tends to be a very polarizing issue – you either support it strongly, or you oppose it vehemently. And there really isn’t a middle ground where reasonable minds can agree to disagree. That’s because people’s personal views are so often colored and shaped by religious beliefs and strong personal convictions. In other words, stuff that people take pretty darn seriously. And because it’s such a heated subject, it’s very difficult (if nearly impossible) to have a civilized discussion on the topic. And this can lead to some very uncomfortable and offensive situations in the workplace.
Employee discussions can lead to serious workplace tensions and productivity issues – and frequently end up as harassment complaints. And if it’s a supervisor who makes offensive statements, not only are you dealing with potential harassment claims, but you may also see the statements used against you in subsequent discrimination litigation.
Plan Ahead – Let Employees Know What’s Expected of Them
Hot political and legal developments will continue indefinitely — that’s a certainty. And unless you’ve told your employees that discussions about politics, religion, morality, and other personal beliefs are completely off limits (an unrealistic and unworkable standard), people are going to, well…chat.
Employers need to take a strong and clear position about the appropriateness of these kinds of discussions in the workplace. There is a delicate balance to strike between allowing reasonable employee conversations on the one hand, and preventing harassment and discrimination on the other.
Don’t assume that employees know what’s off limits. In fact, you will often find yourself contending with the misguided convictions of employees who believe that the First Amendment allows them to say anything they like at work. You may also be dealing with folks who believe that religious discrimination laws protect any kind of behavior associated with deeply held moral beliefs – including brazen statements that gay marriage is a sin, or even proselytizing in the workplace.
There’s a recent line of case law addressing the precarious knife’s edge that employers must navigate between sexual orientation harassment on the one hand, and religious discrimination laws on the other. I would highly recommend at least reading the head note summaries of the following:
- Ng v. Jacobs Engineering Group, 2006 Cal. App. Unpubl. LEXIS 9142 (Cal. Ct. App. Oct. 2006)
- Piggee v. Carl Sandburg College, 464 F.3d 667 (7th Cir. 2006)
- Peterson v. Hewlett-Packard Co., 358 F.3d 599, 601 (9th Cir. 2004)
- Bodett v. CoxCom, 366 F.3d 736 (9th Cir. 2004)
- Buonanno v. AT&T Broadband, 313 F. Supp. 2d 1069 (D. Colo. 2004).
It All Comes Down to Communication – Which Means Effective Training
At the end of the day, your employees will not be materially impacted by the cases you study – or even the policies you write to accommodate these recent changes in the law. Only well executed, periodic training programs will get people’s attention, and send the message home.
That’s why you need to ensure that your harassment training program has been updated to include the following:
- Sexual orientation and gender identity as “protected categories.”
- Scenarios, examples and Q&A that address not just the prohibition against sexual orientation and gender identity discrimination, but also the issues associated with same-sex marriage, as well as the application of employee benefits to same-sex couples.
- The rules protecting employee privacy, including how questions about an employee’s sexual preferences and lifestyle choices are inappropriate.
- The organization’s commitment to an environment that is inclusive, and values the diversity of its employees.
And rest assured, just because you’re not operating in California or Massachusetts doesn’t mean that the gay marriage issue won’t impact your workplace. It’s only a matter of time before the U.S. catches up with the rest of the industrialized world. (A highly opinionated statement by this Canadian-born blogger, but happily, I get to do that in this forum…)
And with the likely change of administration in 2009, these reforms are more imminent than ever. It’s time for your policies and training programs to reflect the realities of the world’s demographics.