Why middle America must not give up on protecting LGBT workers

Just because DOMA’s dead, doesn’t mean equality has been achieved

Out & Equal Workplace Advocates

Image Joel Engardio

By Joel Engardio, Out & Equal Associate Director of Communications

It’s easy to assume gay Americans have it good each time another state allows same-sex marriage and Ellen’s TV show gets renewed for a new season. From pop-culture to official wedding vows, acceptance of gay people has come a long way.

Yet it’s still perfectly legal to fire someone in 29 states based on sexual orientation — 33 on gender identity. Michigan is one of the states where openly lesbian, gay, bisexual and transgender (LGBT) residents work at their own risk.

That’s why Saginaw, Michigan can’t give up on the LGBT non-discrimination ordinance that was indefinitely postponed by the city council last week. It’s well known you can’t fire someone because of their religion, sex or race, but sexual orientation and gender identity isn’t on the list in most places. This lack of workplace protection means a lot…

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Charitable negotiations

I want to revisit the “women and negotiation” topic for a brief moment here, because I’m working through something. In practically everything I read on the subject, I’m told that women negotiate differently than men. They are less confident, don’t like to speak about their accomplishments, try too hard to be liked, are subconsciously attempting to avoid being called “bossy” or “pushy” (I should disclose that I’m more or less on the #banbossy bandwagon). Research shows that women don’t apply for jobs at the same rate men do, because they don’t consider themselves qualified.

You’re probably going to assume I’m here to challenge these studies. Well, yes and no. I don’t like how they are designed to tell women how they fail at the negotiating table, imparting all sorts of wisdom on what not to do. It’s a lot less helpful than telling women what they can do. There are two primary things I think women need to focus on in order to have more success at the bargaining table: channeling their own altruism, and self-confidence.

This post will only tackle that first point, which may seem a bit unusual. Channel their altruism? Here’s what I mean. In a 2009 study in the Journal of Personality Social Psychology, Emily Amanatullah of the University of Texas devised an experiment to test negotiation ability. In a job-opportunity simulation, she had women and men negotiate a starting salary for themselves. Then, she asked the same participants to negotiate a salary for another participant. She found that “when the women the women negotiated for themselves, they asked for an average of $7,000 less than the men. But when they negotiated on behalf of a friend, they asked for just as much money as the men. Amanatullah says when women advocate for themselves, they have to navigate more than a higher salary: They’re managing their reputation, too. Women worry that pushing for more money will damage their image. Research shows they’re right to be concerned: Both male and female managers are less likely to want to work with women who negotiate during a job interview.” (Source: Why Women Don’t Ask for More Money, from NPR’s Planet Money, April 8, 2014).

Putting aside the managers, who are clearly dealing with their own biases regarding feminism, let’s focus on that other interesting point: women are equally as capable as men of negotiating. When they do so on behalf of a friend, they get just as much money as men. So how do we use that spirit of altruism and capability for negotiation to help women advocate for themselves? I have no answers to this yet, but I think there’s something there.

A little history on Church and State, part two

To pick up where we left off:  “free exercise” of religion applies to beliefs, but not necessarily to religious practices. The government can pass laws that restrict religious practices if there is a “compelling interest” to do so . For example, the government cannot pass a law mandating that citizen stand and salute the flag. However, a religious practice that involves sex with minors could be outlawed.

Now I’m not a lawyer, so I can’t get into the nuances of how the Supreme Court has interpreted the First Amendment in all of its guises. But what I am curious to know is how the new law in Mississippi – the Mississippi Religious Freedom Restoration Act – allowing businesses to discriminate against LGBT people will be interpreted. We seem to have a conflict here between the First Amendment (freedom of religion) and the Fourteenth Amendment (equal protection). Section 1 of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As we know, this clause has been interpreted to outlaw discrimination by public organizations and public individuals based on race/ethnicity, yet this mostly hearkens back to the Civil Rights Act of 1866. It has also been interpreted to prohibit discrimination based on gender (Reed v. Reed, Craig v. Boren) – but again, only in relation to public entities and individuals, not private.

So what happens when a public company – even a mom-and-pop shop – discriminates against an individual based on their sexual orientation? Is the religious freedom of the public entity protected? Or is the equal protection of the LGBT individual?

This is different from the recent rulings on same-sex marriage and the Fourteenth Amendment, because there is not the religious objection component (overtly, anyway). The Supreme Court has never ruled on the issue of classifications based on sexuality (see Loving), and states are traditionally understood to be able to make regulations regarding morality. And yet these new laws hearken back to the Civil Rights issues of African-Americans not being able to eat in certain restaurants. Do we need a new Civil Rights Act, with sexual orientation added? Does religious freedom trump equal protection? Does the government have a “compelling interest” to prohibit the “religious” practice of discrimination against LGBT people in public spaces?

Brittney Griner meets Slate

The story in this story isn’t, in the end, Brittney Griner, though she is fabulous. It’s that when I first went to this article (http://www.npr.org/blogs/codeswitch/2014/04/08/300516000/coming-out-in-basketball-how-brittney-griner-found-a-place-of-peace?utm_medium=facebook&utm_source=npr&utm_campaign=nprnews&utm_content=04082014), I did what I always do (after telling myself not to, of course) – I scrolled through the comments.

I don’t reply to articles myself, because I don’t like having to sign up for whatever comment-enabling program is required in order to post. I roll my eyes at trolls with the best of them, and compose arguments in my head to the ignorant asses who usually post on these. If you saw NPR’s April Fool’s Day article, you’ll know what I’m talking about (if you didn’t, you can read about it here: here: http://www.uproxx.com/filmdrunk/2014/04/npr-april-fools-day-prank-facebook/.

But this time, the comments were wonderful. Reasoned, nuanced, respectful. They bemoaned the fact that even in the 21st century, Brittney can’t be just a gifted basketball player, but must be a gifted gay basketball player. They discuss that her gayness is relevant because she chooses to allow it to be a featured and celebrated part of herself, not a sidenote or a hidden shame. They discuss how society reacts when female athletes come out as compared to when male athletes do so. They use relevant examples and analogies. They do not call people names. They use proper grammar and vocabulary and spelling (for the most part). They thank each other for the other’s politeness and ability to see multiple sides to an issue.

They are a breath of fresh air.

Then again, the new “sleek and sexy” uniforms that the WNBA are proposing deserve a  post of their own. WHAAAT?

A little history on church and state: Part 1

Contrary to popular belief – including my own for much of my life, notably during the 2008 elections – separation of church and state is not explicitly mandated in the Constitution. We have the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

We have Thomas Jefferson interpreting this Amendment in a letter to the Danbury Baptist Association in 1802:  “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

When you look at these, particularly the former, you’ll notice that the law places a greater burden on government to stay out of religion (the State to separate from the Church) rather than religion to stay out of government. In fact, religion is rather clearly (in my opinion) invited to be a part of government, in that each individual has a right to “free exercise” of his or her religion.

This is a problem. Now, like with freedom of speech, there are limits to the freedom of religious expression. In Reynolds v. United States, the court said: “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.” So, to clarify: “free exercise” of religion applies to beliefs, but not necessarily to religious practices.

This is the first thing to keep in mind. More to come.

Private lives, public opinion

As you may have heard, Mozilla CEO Brendan Eich has resigned. This has been blamed in part on OKCupid’s request that their users boycott Firefox due to the fact that Eich donated money to the Prop 8 campaign in CA in 2008. In an earlier interview with VentureBeat, Eich said “How I’ve conducted myself in my 16 years at Mozilla – I’ve always kept my personal beliefs out of it… We won’t succeed in the mission if people can’t leave irrelevant, exclusionary stuff at the door.” Mozilla as a company has a mission statement that is inclusive of everyone. So why does the CEO’s personal beliefs matter so much? Is his personal stance on gay marriage irrelevant to his role as the CEO of an inclusive company?

The question is an important one, and does get at the heart of how much an individual’s personal beliefs should be taken into consideration in the public sphere. On one hand, Eich apparently did support Mozilla’s inclusion initiatives. On the other hand, he clearly didn’t believe them enough to “walk the walk.” Or did he? Had he changed his opinion on same-sex marriage since 2008? Does that matter?

If Mozilla were a gay-rights organization, I’d see the problem. But it’s not. So again – does Eich’s personal belief on same-sex marriage have any bearing on his role as CEO at Mozilla? As someone who works in the industry, I’ll be the first to say that company culture comes top-down, and that many LGBT employees at Mozilla would likely feel hurt, betrayed, and ostracized by knowing that their boss actively disapproved of equality. That said, his political contribution was personal. Mozilla employees make their own political contributions, and they are not fired for them, nor forced to resign. They, like all Americans, have the freedom to make those decisions when they are not at work, and Eich should have been afforded the same privacy. I don’t agree with his stance on Prop 8, but he had a right to it, and had a right to support the cause he believed in without losing his job.

But that’s not exactly what happened, for he wasn’t fired. The thing here is that the public did what the public also has a right to do when they disagree with a company’s decision or where that company is headed. They voted with their money and their business. They boycotted Firefox. And because of the public backlash (and presumably the drop in business), Eich resigned to protect the company.

So what we have here is someone who used their right to free speech, and a group of people who did what one does in a capitalistic society when one doesn’t agree with that free speech. The whole thing was very American, in the end. I feel bad for Eich, but I’m proud of everyone in this situation who put their money where their mouth is.

Thoughts? Was OKCupid right to boycott Eich? Was Eich right to resign? Should his donation have an impact on his role as CEO? Does it?

Love the sinner, hate the sin

Something worth reading:

http://www.huffingtonpost.com/waymon-hudson/dominic-sheahan-stahl_b_1456663.html

For once, I was heartened by the comments rather than the opposite. I’m starting to feel more and more optimistic that people are starting to recognize that WWJD is not aligned with the decisions they “justify” with belief and religion. For another example:

http://www.huffingtonpost.com/2012/04/24/paul-ryan-challenged-by-georgetown-faculty_n_1449437.html?ref=fb&ir=Politics&src=sp&comm_ref=false#sb=820654,b=facebook

Are people, both conservatives and liberals and non-labels, finally “getting it?” And by “it” I mean the rampant misuse of Jesus’s name to defend all sorts of horrors, such as shaming Dominic Sheahan-Stahl and crafting budgets that harm the poor in our communities. 

I sighed in particular at one familiar comment: “we don’t hate you. We dislike and shun the lifestyle you lead. You are always welcome but your way of life is not.” (grammar cleaned up to protect the ignorant J) How can those mutually exclusive propositions ever be true? How can you “dislike and shun” everything that makes me *me* and yet still say you “love” me? I’m not buying it. How would you express that dislike, anyway? By asking me not to come to your home/school/church? By insulting my family, my children? How can you welcome me and love me with all that Christian goodness if you’re so busy judging me?

Others defend the “love the sinner, hate the sin” ideology in the guise of “I care about you, so I want you to stop doing what you’re doing so you can go to heaven.” It seems so well-meaning. But what are those people really saying? I hate that excuse: “I have no problem with YOU, just with what you’re DOING.” I’d love to meet a person who really didn’t have a problem with ME and yet would still say that.   

Negotiating: It isn’t all created equal

Recently, a member in my LinkedIn group posted this article on negotiation:

http://www.slate.com/blogs/xx_factor/2014/03/17/should_women_negotiate_for_more_pay_a_female_academic_leans_in_and_allegedly.html?wpisrc=obnetwork

It’s a good article. It cites relevant research from Harvard, that is mostly right on the money. Women do have a more difficult time negotiating, both because of a “likeability complex” and because they are more likely to be perceived in a negative light (#banbossy, anyone?). That said, I take umbrage at the example used to support the author’s thesis. Studies on negotiation tactics and success are usually – like this one – more or less confined to professional settings. Here, a lot depends on the specific nuances of applying for an academic position. I don’t think it was the best example to support the author’s thesis.

I asked my spouse, who happens to be a female professor at a local university, and who has participated on academic search committees, for her opinion. She has heard of similar stories, of both women and men, who were caught in this type of sticky negotiation situation – which, I’ll again mention, is rather unique to academia. Here’s what she said:

“I don’t think I would have put it in writing, and it’s very uncommon for someone to be negotiating with the search committee. The search committee usually simply makes a recommendation; they have no power. Negotiations are usually done with the Head of the Division or the Department Chair. Her email was not appropriate. She was addressing the wrong people in the wrong way. Academic negotiations are very tricky, yet she’s asked for the equivalent of a year off (pretenure and maternity leave) plus a 1 year delay in her actual arrival on campus. It’s like she’s saying, yes I’ll take your job, but I won’t be there when you need me, I won’t teach as much as you want me to and I’m going to disappear for 2 full semesters at some point in the next few years. I would have maybe asked for two of those – more base salary for sure; the semester of maternity leave one is a head scratcher because it depends on what their benefits package already cover. And again, I would have done this negotiation over the phone or in person so I could judge the feedback from the dept. chair while I was talking.” I asked her if it mattered that the applicant was a woman. She replied, “well the maternity leave part is specific to her gender. I’m not sure if the others mattered. Their response, about her sounding research focused, would apply across genders (if it’s legitimate). The research versus teaching school thing is very legitimate (and it sounds like she hasn’t done her research as to which type of school this is). I think she was ill-advised. Another possibility is that they had reservations about her to begin with but she was the “best candidate” that they could get approval for but when she pushed back it was easy for them to go to their #2.”

And, keeping in mind that universities, admit it or not, have “gender quotas” to fill (e.g., it’s in their best interest to have diverse faculty), I’m not sure this decision on the part of Nazareth has anything to do with the fact that the applicant is female. I think her “rookie mistake” would likely lead to a rescinded offer – even if it were a man, substituting “parental leave,” maybe, for maternity leave? Or even possibly without it. Thoughts? I am curious as to why they didn’t offer even a counteroffer… but again, I don’t think it has much to do with the fact that she is a she.