International Encyclopedia of Public Policy and Administration - Vol. 2

By Jay M. Shafritz | Go to book overview

characteristic which has no more relevance to employment decisions than one's race or sex and should be treated as such. There are others who may believe that homosexuality constitutes morally unacceptable behavior, but regardless of that belief feel that civil law should not be used to enforce this particular moral preference. And still others argue that it is unnecessary to determine whether or not sexual orientation is a biological or behavioral attribute because consensual sexual choices made by an individual are essentially a private matter over which the state should exercise no control other than to protect the right of persons to make such choices. Even the fundamental question of whether or not discrimination on the basis of sexual orientation should be prohibited is still strongly debated.


Nondiscrimination Laws

Where employment discrimination on the basis of sexual orientation has been prohibited, refinement of its exact meaning continues to evolve. In passing such laws, most jurisdictions were concerned with basic hiring and firing decisions that might be made by an employer who knew, or learned, that an applicant or employee was a lesbian or a gay man. Using such knowledge to make a hiring or firing decision was clearly meant to be prohibited. However, protection against employment discrimination usually includes protection against all aspects of the employment situation including working conditions, promotion, training, salaries, and benefits.

Some of these areas have been handled in a relatively simple and direct manner; for example, promotion decisions are treated like hiring decisions and, hence, subject to the same prohibition on discrimination. In addition, sexual harassment regulations have been modified to cover same sex as well as opposite sex harassment. Employee benefits, however, have proven to be a much more difficult issue to address. Many employers provide benefits not only to the employee, but to the spouse and minor children of the employee as well (see fringe benefits). Health benefits and retirement survivor benefits are the most important. Lesbian and gay male employees argue that they have family members equivalent to spouses who are not granted the same benefit opportunities only because state laws prohibit them from marrying. This argument contends that to design a benefit program that only recognizes civil marriages performed by state agents simply perpetuates discrimination in employment conditions on the basis of sexual orientation. A number of private and public sector employers have responded to this by creating a new category of relationship called "domestic partnership" (see domestic partnership benefits), through which lesbian and gay male couples (and sometimes unmarried heterosexual couples) are eligible for at least some of the same benefits as employees who are in civil marriages.


Conclusion

Whether or not employment discrimination on the basis of sexual orientation should be prohibited by government action is still a matter of heated debate in large part because there is no agreement on the nature of sexual orientation itself. At the present time a number of state and local governments have taken steps to prohibit such discrimination, but in other governments the issue has not even risen to the level of public discussion, or antidiscrimination laws have been defeated or repealed. The federal government has used agency executive orders to prohibit sexual orientation discrimination against civilian employees in many departments, but has refused to apply such protections to uniformed military personnel. And even when laws prohibiting discrimination are adopted, just how such laws are to be interpreted, the extent of their coverage, and the remedies that are appropriate remain to be determined.

CHARLES W. GOSSETT


BIBLIOGRAPHY

Arriola, Elvia Rosales, 1988. "Sexual Identity and the Constitution: Homosexual Persons as a Discrete and Insular Minority". Women's Rights Law Reporter, 10:143-176.

Case Barbara, 1989. "Repealable Rights: Municipal Civil Rights Protections for Lesbians and Gays". Law & Inequality, 7:441-457.

Cooper, Melinda, 1993. "Equal Protection and Sexual Orientation in Military and Security Contexts: An Analysis of Recent Federal Decisions". Law & Sexuality, 3:201-243.

Dyer, Kate, ed., 1990. Gays in Uniform: The Pentagon's Secret Reports. Boston: Alyson Publications, Inc.

Rubenstin, William B., ed., 1993. Lesbians, Gay Men, and the Law. New York: The New Press.

DISMISSAL. The act of discharging a worker from employment. This term-along with such synomyms as termination, discharge, and the colloquial "to fire" -- is almost always used when the action is taken for cause. In other words, the worker has committed some offense for which dismissal is the appropriate managerial response. The term layoff, in contrast, applies to situations in which the individual's employment is ended due to financial difficulties, reorganization, or other reasons not related to the worker's behavior or performance.

Although the effects of both dismissals and layoffs are the same -- the workers no longer have jobs -- termination for cause usually carries a stigma that may impede the individual's future employability. Relatedly, it exerts a predictably negative impact on their immediate financial status; this often contributes to both short- and long-term hardship for the workers and their families. For these obvious reasons, dismissal is the harshest action that an organization can legally take against its members. It can therefor be a traumatic

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