To read this month's cover story on LGBT issues in the workplace, click here.
Sometimes discrimination isn't so obvious. This is especially true when it comes to sexual orientation-based discrimination. Even the most innocent comment or question could land an employer in hot water if he or she isn't careful.
One of the biggest risk areas for subtle discrimination is job interviews. Let's say an employer is interviewing a male candidate for a position and notices a ring on the individual's ring finger. The employer might strike up a seemingly inconsequential conversation about the candidate's wife. At this point, the candidate may choose to reveal his sexual orientation, which could then put the employer in jeopardy.
"In a situation like that, you have not asked for sexual orientation information; you've begged for it," says Michael Cohen, partner at WolfBlock in Philadelphia. "In-house counsel have to make sure managers and HR professionals understand they have to be careful with questions they ask during interviews. They should keep questions out of the personal realm as much as possible."
Michele Beilke, a partner in Reed Smith's Los Angeles office, recalls an incident when a heterosexual manager refused to visit clients in a part of town heavily populated by gays. The employee made snide comments, which can amount to discrimination.
"When something like that happens, you come down on that employee with a sledgehammer and let them know that's no acceptable behavior and that this is an inclusive workplace," Beilke says.
Beilke adds that punishment for such incidents of discrimination must be relative to the severity of the discriminatory act.
"Physical touching means more action than a gay joke," she says. "But there are even different levels of offensiveness with respect to jokes. So it is really an individualized analysis, and every complaint must be treated accordingly."