Magazine article Risk Management

The LGBT Travel Risk Dilemma

Magazine article Risk Management

The LGBT Travel Risk Dilemma

Article excerpt

Employers can face a complicated problem when offering their LGBT employees coveted international assignments: balancing the fairness of advancement opportunities with the obligation to keep employees safe in places where they might be threatened.

As more U.S. states recognize same-sex marriage and the country awaits a Supreme Court ruling on whether states can refuse to recognize these unions, employers must navigate another critical dilemma with regard to lesbian, gay, bisexual and transgender (LGBT) employees: travel and relocation.

Overseas assignments are often highly coveted as they provide an excellent opportunity to gain international experience and, ultimately, advance career prospects. But such situations can be problematic for LGBT employees, particularly those who are married. If a foreign assignment is to a country where same-sex marriage and LGBT people in general are considered socially unacceptable, these individuals and their spouses can be subject to arrest, incarceration or worse. In 10 countries, including Iran, Iraq, Nigeria and Qatar, homosexuality is punishable by death. In dozens of others, including such growth economies as India, Egypt and Malaysia, it can result in life-time imprisonment.

For employers, the situation can be quite complicated. Twenty-two states and the District of Columbia prohibit employment discrimination based on a person's sexual orientation. Much like Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on a person's race, religion or gender, these laws require companies to treat LGBT employees the same as heterosexual workers with regard to opportunities for career advancement. All U.S. employers are also bound by Occupational Health and Safety Administration requirements to maintain a safe and secure work-place environment for employees, including when they travel overseas or reside abroad on a long-term assignment.

So companies face something of a catch-22: They are bound by the laws of 22 states to not discriminate against qualified LGBT employees with regard to advantageous overseas relocations, but they must also ensure their workers are safe when traveling or residing abroad in a country that may prove hostile. For example, sending a gay employee and his family to Qatar on a long-term assignment may be great tor his career, but not so great for the family's personal safety. If the company then decides not to give that employee such an assignment, however, it might be vulnerable to legal action.

"Concern over the person's safety as a reason for not granting the overseas assignment would not be a defense," said Robert Sedler, constitutional law professor at Wayne State University and a consultant to lawyers challenging state bans on same-sex marriage. "A company in New York, one of the 22 states banning sexual orientation discrimination, can't say it's not going to send a gay or lesbian employee to Uganda because they would be in danger. They would risk being sued."

Internal legal counsel and risk managers of companies in those 22 states must carefully weigh discrimination liability against the obligation to provide a safe and secure workspace. If rules against sexual orientation discrimination become the law of the land, all companies will have to address this challenge.

For employers, these issues can be further complicated by an employee's privacy rights. For instance, say an employee is a closeted gay man whom his employer believes to be heterosexual when offering a long-term assignment to Malaysia. Assuming the employee is aware of the illegality of homosexuality in the country, he might turn down the opportunity. But if he is unaware of the country's laws or chooses to ignore them and accepts the assignment, this opens another door to liability for the employer. "The issue is the employee's right to privacy," said attorney Brian S. Inamine, partner at Los Angeles-based law firm LeClairRyan, where he heads up the employment law practice. …

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