Few Gays Using Law That Bars Job Bias : Rights: Proponents say statute’s limitations and the reluctance of homosexuals to come out of the closet have led to quiet start for 1993 legislation.
It was a measure born of controversy, preceded by intense conservative opposition, a gubernatorial veto and noisy gay protests.
Yet for all the clamor, California’s new law barring job discrimination against homosexual men and lesbians has had remarkably quiet beginnings.
Gays who filled the streets to demand job protections have not flocked to file discrimination complaints. Predictions that bias claims would disrupt business and clog the courts have not come to pass.
Only 159 sexual orientation discrimination claims were submitted last year to the state, compared with the more than 15,000 filed by Californians alleging job bias because of race, gender, national origin and the like.
There are no figures on the number of gay discrimination lawsuits filed statewide in civil courts, but attorneys indicate that the volume is modest. “I don’t see any explosion of litigation,” said Victor Schachter, a senior partner in a San Francisco law firm that represents employers.
Representatives of two of the state’s major business groups, the California Chamber of Commerce and the California Manufacturers Assn., say their members have not complained about the regulations.
That record of calm runs counter to the fierce ideological debate that has turned anti-discrimination protections for gays into a stubbornly contentious issue from coast to coast.
Referendums barring gay rights laws have gone before voters in several states, and the U.S. Supreme Court is considering the constitutionality of one such measure approved in Colorado. President Clinton recently entered the fray when he became the first chief executive to endorse a long-stalled congressional proposal to outlaw anti-gay job discrimination nationally.
It took proponents more than a decade to make California one of nine states that prohibit employment discrimination against homosexuals.
The legislation, which took effect in 1993, was signed by Gov. Pete Wilson a year after he vetoed an earlier proposal as being anti-business, setting off weeks of raucous street demonstrations by gay men and lesbians.
The compromise bill did not create a new body of law but instead wrote into statute earlier legal opinions holding that homosexuals were protected from job discrimination under the state Labor Code. The act exempts religious organizations and private employers with no more than five workers. It additionally prohibits the use of quotas or “other such affirmative action.”
Gay rights proponents complain that by funneling sexual orientation claims through the labor commissioner’s office, the law places gays at a comparative disadvantage with other protected groups, who pursue their job bias complaints under the state Fair Employment and Housing Act.
In particular, advocates say that the Labor Code’s 30-day filing deadline is unfair--and a key reason that more sexual orientation complaints are not filed with the state.
“That is a very big problem,” said Larry Brinkin, who coordinates the gay and AIDS unit of the San Francisco Human Rights Commission. “It’s pretty rare that people realize what happened to them, know how the law works and can file in 30 days.”
Members of other protected categories have a year from the date of alleged job discrimination to file under the fair employment act.
Moreover, to win a case before the labor commissioner, a complainant has to meet a higher standard of proof than before the fair employment commission.
Regardless of the law’s specifics, gay rights attorneys say there is another, overarching issue that discourages homosexuals from filing claims and makes it harder to prove their cases: the closet.
“It’s still not easy to come out as gay or lesbian even if there’s a law protecting you,” said San Francisco attorney Paul Wotman, who has handled several pioneering gay discrimination cases. “There’s still prejudice out there. If you identify yourself, people feel it limits their opportunity for the future.”
Others offer a different explanation for the modest volume of claims.
“I think quite frankly . . . it would seem to me perhaps the gay community was arguing there was a greater amount of discrimination than there is,” said Robert Millman, managing partner in the Los Angeles office of a large management and labor law firm. “It’s not a big issue. People would like to suggest that it is, but I don’t think it is.”
Gay rights advocates respond that just as it took years and Anita Hill’s high-profile allegations against Clarence Thomas to bring sexual harassment out of the work closet, so too will it take time for sexual orientation discrimination to emerge from the office underground.
“I don’t think the low number of complaints made . . . is in any way a reflection of the prevalence of the problem,” said Los Angeles attorney Carla Barboza. “On the contrary, the law is still so new and we still have such a long way to go in terms of awareness and consciousness.”
Sometimes, those responsible for enforcing the law haven’t even been aware of it.
Attorney Frank Radoslovich says that when his three clients first went to a Sacramento field office to file a complaint last year, the labor commissioner’s staff did not know what they were talking about and handed them a wage claim form.
They wound up filing a lawsuit in state court last summer, deciding, like many others claiming bias, that even if they won, they would not get want they wanted from the labor office.
That is because the commissioner can order an end to discriminatory practices, reimbursement of lost pay and job reinstatement--but not, for the most part, damages.
Those with the money for legal fees and a strong enough case to merit an attorney’s interest thus often turn to civil court, where they also have at least a year to file.
In the case of Radoslovich’s clients, they allege that for roughly two years they were harassed by co-workers and supervisors in the Sacramento office of MCI Communications Corp.
Gary Soucie, the prime target, says a dead duckling was left on his desk, anti-gay slurs were written in the office dust, coffee was poured over his papers and he was the subject of mocking sexual advances.
When he left work one day, he says, he found two of the tires on his pickup truck had been punctured. Duwanda Cash says two vehicles she’s driven to work have been scratched with keys. Darren Frazier says a male co-worker grabbed his own crotch and demanded oral sex. People would tell demeaning gay jokes and then laughingly look his way.
“You walk through the door and wonder, are they going to start cracking jokes and telling stories?” Soucie said. “It was kind of a hopeless feeling.”
MCI’s attorneys declined to comment on the case, but in court papers, the company denies “each and every allegation.”
Advocates who are familiar with the labor investigations give them generally good marks, saying the commissioner’s staff is conscientious and sensitive--if greatly overworked.
But some are troubled by the low number of cases in which the commissioner rules for the complainant.
Of 90 sexual orientation cases closed so far this year, Acting State Labor Commissioner Jose Millan says three were decided in favor of the person alleging discrimination. One of those was a heterosexual woman who won her case against the lesbian owners of a Palm Springs hotel, who dismissed her after they bought the establishment.
An additional nine cases have been settled; 25 complaints were dismissed in their early stages for various reasons and one decision was in the employer’s favor. The remaining cases were abandoned or withdrawn, in some instances because the worker was pursuing a lawsuit.
In explaining the figures, Millan noted that to favor a complainant, an investigation has to find discrimination was not just a factor, but was the primary factor behind the employer’s adverse actions--a difficult threshold to meet.
Even without that threshold, gay discrimination cases present particular challenges.
“I think sexual orientation cases are by definition tougher because the employer can always say, ‘We didn’t know you’re gay. You’re gay?’ ” said Mary Dunlap, a Northern California attorney and public interest law consultant.
Because sexual orientation is not obvious like gender or race, gays have to show that their employers knew they were homosexual or perceived them as such--a difficult task if someone has not been open about their orientation.
“I get many people in here who somehow logically argue that although they are closeted, they believe sexual orientation discrimination has occurred and can be proven,” said Los Angeles attorney Lee Walker.
They tell Walker that their boss must have figured out their homosexuality because they never referred to a romantic partner or discussed their private life.
“That’s true in real life but that’s not what you take before a jury,” said Walker, who declines such cases. “I don’t go before a jury and say this woman never mentioned a boyfriend.”
Simply finding an attorney to take a case can be tough. Although court decisions opened the door to gay discrimination lawsuits years before the legislation was adopted, there remain a limited number of lawyers with experience in the field.
Those who do handle gay cases vigorously screen potential clients, looking, like anyone in private legal practice, for winnable, money-making cases.
Consider West Hollywood attorney Joel Loquvam’s firm, which advertises in gay publications. He and his colleagues receive 20 to 40 calls a week about job incidents. Of that, they only take a couple of cases and file a lawsuit no more than about once every three weeks.
A number of the inquiries involve legitimate discrimination concerns, Loquvam said, but the percentage that are provable is “quite low.”
On the one hand, attorneys say people feel freer to utter anti-gay slurs in the workplace than racial epithets, thus providing evidence of a hostile environment. But they also say anti-gay discrimination is assuming subtler--and harder to prove--forms than in the past.
Now, Loquvam said, employers are more apt to use buzzwords, saying, for example, that a gay man is not aggressive enough or a lesbian is too assertive for the job.
That the bias is less blatant is a sign of progress. California’s law may not have radically changed the landscape, but advocates insist its mere existence has had an effect.
“I do think that even if the labor commissioner was doing nothing, lesbian and gay people are better off having this law on the books,” said Jon Davidson, supervising attorney in the western office of Lambda Legal Defense and Education Fund.