Frequent Job Bias Leaves Little Recourse, Gays Say

Robert Verette tried to apply last year for a job as a receptionist at a 24 Hour Nautilus exercise club in San Mateo. But in a lawsuit filed Monday, Verette alleges that his application ended up in the trash after the club’s general manager said there was “no way that faggot’s getting a job here.”

Puzzled by the allegations is Mark S. Mastrov, president of 24 Hour Nautilus, who said his company’s personnel handbook prohibits treating employees or job applicants in an unlawful manner. “We’re really confused and at a loss,” Mastrov said. “We have individuals of all persuasions employed (here).”

What actually took place that day will probably be settled in court. But the case illustrates the confusion, conflict and high emotions that can arise over issues of bigotry and sexual orientation in the workplace.

Verette’s suit was filed the day that protests broke out throughout California over Gov. Pete Wilson’s veto of AB 101, a bill that would have prohibited job discrimination against gays and lesbians.

Wilson maintains that such discrimination is not widespread enough to warrant passing specific legislation that he says would add to the onus of regulations already hampering California companies, especially smaller firms.

However, gay activists and many legal experts counter that discrimination based on sexual orientation is widespread in corporate America.

“It’s clear there is wide-ranging discrimination (against gays) in employment and housing and the military . . . and probably every facet of life,” said James A. Kushner, professor of law at Southwestern University School of Law in Los Angeles.

Only four states--Wisconsin, Massachusetts, Hawaii and Connecticut--and the District of Columbia have passed laws that specifically prohibit workplace discrimination based on sexual orientation. A federal measure that would do so has been steadily gaining support since 1975 but is probably years from being passed.

Meanwhile, a confusing patchwork of local regulations has largely left it to companies to ensure that their employees receive fair treatment. Like many of the laws enacted by Los Angeles, San Francisco and other communities, company policies also vary widely in the level of protection that they provide.

A small number of companies--such as San Francisco-based Levi Strauss & Co. and Digital Equipment Corp. in Maynard, Mass.--devote considerable attention to the issue. Some firms even go so far as to assign special managers to deal with diversity in the workplace and summarily dismiss workers who violate codes of conduct.

Many more firms have vague rules covering such discrimination--in addition to bias based on race, religion, sex, age, national origin, disabilities or veteran status. Others take no account formally of the problem of discrimination against gays and lesbians.

Adding to the confusion, some companies have waged legal challenges against local regulations that they consider unfair.

Many business groups--including the California Chamber of Commerce and the California Manufacturers Assn.--remained neutral in the fight over AB 101. But the Small Business Network in San Francisco supported the measure, saying in a letter to Wilson that the “local experience has not been negative (or) burdensome” in terms of costs.

However, the Merchants and Manufacturers Assn., a statewide organization of 4,100 medium- to large-size companies, opposed the bill. “We felt it would open employers up unnecessarily to increased litigation,” said Lou Custrini, a vice president in the group’s Los Angeles office.

To some extent, gays and lesbians are attempting to deal with the same sorts of discrimination that have faced women and minorities for decades. Even though, in theory, discrimination against those groups has been outlawed for years, complaints still crop up at a good clip.

Comprehensive statistics tracking instances of discrimination based on sexual orientation do not exist. But Overlooked Opinions, a Chicago marketing research firm that focuses on gay social and workplace issues, found in a recent survey of 6,500 gays and lesbians that nearly 15% said they had experienced job discrimination.

“What makes it more alarming is that very few people are ‘out’ at work,” said Jeff Vitale, the company’s president, referring to openly homosexual employees. “They’re just the tip of the iceberg.”

Under the San Francisco law, workers may lodge grievances with the city’s Human Rights Commission, which last year handled 73 formal complaints of sexual-orientation discrimination in the workplace. The agency also gets an average of more than 20 calls per week from elsewhere around the state. Los Angeles has no comparable administrative procedure to address complaints.

Larry Brinkin, who mediates cases for the commission, often secures a cash payment from the employer for the worker. The process is far less expensive than going through the courts. In recent years, Brinkin said, he has noted a trend toward complaints involving small and medium-size companies.

In addition to Levi Strauss and Digital Equipment, Lotus Development Corp. of Cambridge, Mass., is at the forefront in confronting the issue of sexual orientation head-on. Lotus recently broke new ground by agreeing to provide health and other benefits to “spousal equivalents” of gay and lesbian employees.

Many such cutting-edge companies also have recently installed “managers of diversity” who run programs designed to make employees more comfortable with the vast cultural and lifestyle differences that are increasingly evident throughout corporate America.

“We’re a company that values diversity,” said Susan Aaronson, U.S. manager of diversity at Digital. “It feels riskier to me not to have (a policy on sexual orientation).”

At Digital, an “open door” policy allows employees to tell concerns about discrimination to a manager with the promise that the conversation will be confidential. Aaronson acknowledged that “there have been examples where there is discrimination,” and occasionally managers who were discriminatory have been fired.

Yvonne Alverio, manager of diversity at Lotus, said her company finds that making gay workers feel comfortable about their sexual orientation in the workplace can actually improve productivity, saving the company money in the long run.

Some legal experts argue that many municipal ordinances prohibiting discrimination against gays and lesbians have no teeth because there is no enforcement body.

But San Francisco’s law survived two challenges last year. American Telephone & Telegraph and Western Union, defendants in separate cases, both argued that the law was unconstitutional because the state Legislature should have authority in all matters of employment discrimination.

The court disagreed, but further challenges could be mounted, said Paul Freud Wotman, a San Francisco attorney who is representing Verette in the 24 Hour Nautilus case.

“The good thing about the (city) ordinance is that, not only can you get damages, but you can get attorneys’ fees as well,” Wotman said. “It makes it more worthwhile.”

In the 24 Hour Nautilus suit, Verette says he was not considered for employment because of his sexual orientation. He alleges violations of the right to privacy and of the state Labor Code based on a landmark state Supreme Court ruling in 1979.

Wotman, as a gay law student at Berkeley, was a party to that suit, filed against Pacific Telephone & Telegraph on behalf of former phone company employees. The court ruled that gays were protected from job discrimination based on gay or lesbian political activities or affiliations. The state attorney general went further, concluding that these provisions prohibit a private employer from discriminating on the basis of sexual orientation.

Pacific Bell agreed to pay $3 million to resolve the former employees’ claims. Pacific Telesis, the parent company, has a policy against discrimination based on sexual preference.

Wotman also represents Jeffery Collins, a San Francisco man who said he was wrongfully fired by Shell Oil Co. because he is homosexual. In June, a Superior Court judge awarded Collins $5.3 million, the largest verdict ever handed down in such a case.

In 19 years at Shell, Collins had been given high marks for performance, the judge noted. He had been promoted nine times and, when dismissed, was earning more than $115,000 a year as a manager. He was fired after an invitation he had prepared for a gay party was found by a colleague in the company’s copy machine room.

Collins sued in 1986, alleging breach of contract, discrimination based on sexual orientation and violation of his right to privacy. Proving that Collins had been wrongfully let go because he is gay was made easier, Wotman said, by a Shell executive’s testimony that he was bothered by the activities described in the invitation.

Shell has a written policy stating that sexual orientation is not a consideration in the company’s employment practices.

Wotman said Shell has made “substantial though not yet reasonable offers” to settle.

One company that stands out in its policies is Cracker Barrel Old Country Stores, a Tennessee-based restaurant chain. In February, it fired several gay and lesbian employees in line with a policy declaring that the company would not employ workers whose sexual orientations “fail to demonstrate normal heterosexual values which have been the foundation of families in our society.”

A store general manager, in a report about one firing, said cook Cheryl Summerville was being dismissed “due to violation of company policy. The employee is gay.”

When rights activists expressed their outrage, the company backpedaled somewhat, but not to the satisfaction of Elizabeth Holtzman, the comptroller of New York City.

Holtzman, custodian of the city’s $42-billion pension funds, said she hopes to use the leverage of the funds’ ownership of 132,000 shares of Cracker Barrel stock to force the company to impose a non-discrimination policy.

Job Bias Against Lesbians and Gays

The Lambda Legal Defense and Education Fund, a gay nonprofit legal organization in New York, lists these examples of problems that homosexuals may face in the workplace: TERMINATION: Lesbian and gay workers may be fired when their sexual orientation becomes known.

HARASSMENT: Gay employees have been harassed by co-workers, sometimes with phone calls at home and anonymous letters.

FAILURE TO PROMOTE: Some gay and lesbian workers have been denied promotion because of their sexual preference. In other cases, gay men have been denied promotion because of fears that they would contract HIV infection and be unable to do their jobs.

BENEFITS: Domestic partners of lesbian and gay employees may not be granted the same benefits as spouses of heterosexual workers.

JOB REFUSAL: Job seekers may be refused positions based on a perception that they are gay or lesbian.