You are listening to an excerpt from Ask the Experts on Talk 860 WWDB AM with weekly guest, LGBTQ legal expert Angela Giampolo.
This week’s episode is called 4 things you should do if you’re experiencing LGBTQ+ Discrimination at Work
Angela and host Steve O talk in depth about employment law topics important to the LGBTQ community such as…
- What constitutes discrimination
- What you need to do if you think you are being discriminated against because of your sexuality or gender identification
- How difficult is it to prove discrimination?
- Should someone “come out” to an employer before applying for the job?
- How many sexual orientation and trans discrimination cases settle out of court?
Transcript
Speaker 1 (00:00)
You are listening to a very special Ask the Experts on Talk 860 WWDB Am with weekly guest LGBTQ legal expert Angela Giampolo. This week’s episode is called Four Things You Should Do if You’re Experiencing LGBTQ+ Discrimination at Work. Angela and host Steve O talked in depth about employment law, topics important to the LGBTQ+ community, such as what constitutes discrimination, what you need to do if you think you’re being discriminated against because of your sexuality or gender identification. How difficult is it to prove discrimination? Should someone come out to an employer before applying for the job? And how many sexual orientation and trans discrimination cases settle out of court?
Speaker 2 (00:56)
Hey, good morning, I just found out that I have covid. And I tell you what they said, that this variant is not tough. It’s tough. But someone’s got to do the show. And we have the greatest attorney with us this morning. She’s with us at 10:00 every Tuesday. Let me introduce you to attorney Angela Giampolo. She handles LGBTQ law and today we’re talking employment law. Good morning, Angela.
Speaker 3 (01:41)
Good morning. How are you, Steve?
Speaker 2 (01:43)
There’s no way we normally do video. I cannot do video today. I am feeling so bad, but at least you’ve got part of me.
Speaker 3 (01:54)
There you go.
Speaker 2 (01:56)
Good morning. Are you at home?
Speaker 3 (01:58)
I am in my office.
Speaker 2 (02:02)
Angela, we haven’t really talked about employment law, and I’m so glad we’re talking about this. When it comes to employment law, there’s discrimination. And I got to back up a little bit. Now, when you say employment law is that employer or the employee.
Speaker 3 (02:24)
Predominantly, as far as litigation goes, the employee who’s been discriminated against. But I do a lot of consulting and document preparation in terms of employee manuals and the documents, the HR policies and things that the employer needs in order to be truly LGBTQ friendly, more so than just in word. But have the policies themselves be reflective of that. So for the employers, I do a lot of consulting work like that and then for the employees represent them.
Speaker 2 (03:06)
So you help them with their handbook.
Speaker 3 (03:09)
I help the employers with their handbooks. Yeah. And I’m a dork so to say that it’s a lot of fun. Yeah, right. But it’s fun for me to take a boring corporation or entity and work with the humans that are the stakeholders of that entity and actually work with them to create a manual for their employees that actually reflects culture. And the humans that made up the company, obviously, if you get so large, like an Aramark or an Apple or whatever, the humans that made up that company are long gone. But there’s still sort of a bedrock of culture that like Steve Jobs created at Apple and Walton and Walmart and things like that. But when I work with smaller companies, anywhere from a million to $10 million is sort of my sweet spot with that. Helping them make an employee manual for their employees is a lot of fun.
Speaker 2 (04:10)
Angela, have you ever thought about publishing a handbook for employers when it comes to LGBTQ?
Speaker 3 (04:20)
So there are some aspects that can be templated that it would be safe to publish that. But ultimately, things are so different, state to state and company to company, and FMLA just changed completely with Covid. And so even if it were easy to sort of put together a statewide thing that could be published within a year, it would be outdated because the laws and the regulations and whatnot change so rapidly.
Speaker 2 (05:00)
Angela, tell us what kind of cases you see when it comes to the employee when it comes to employment, of all.
Speaker 3 (05:09)
Yeah. So before Bostock was just passed or decided in the opinion written in June of 2020, which extended federal protections under Title VII to employees due to their sexual orientation or gender identity, ultimately protecting them nationwide at the federal level. And there are some restrictions there. The employer has to have X amount of employees. So there are still millions and millions and millions of LGBTQ employees out there that are not covered by Bostock at the federal level because of the requirements that the company that they work for have to meet. Which is why it’s still important that at the state level we continue to pass these employment discrimination laws so that the people that aren’t covered at the federal level can be covered at the state level. Here in Pennsylvania, we do not have state level employment discrimination laws.. So to answer your question, what kind of cases do I see prior to 2020 in Pennsylvania? Right away, my first question would be where do you live, which county and or where is the company that you work for located to see if they were even covered, if I could even help them, because if they were in a county that didn’t or the entity was in a county that didn’t have one of the municipalities that didn’t have employment discrimination protections, they could have been completely discriminated against, like brashly and really bad.
Speaker 3 (06:58)
And ultimately it wouldn’t have mapped. So now with Bostock, it’s a different assessment when the person calls. But ultimately, the types of discrimination that I see, a lot of them are transgender employees that are mistreated, that are mistreated, misgendered, the trans folks and harassed and discriminated against. And then from the LGB perspective, it varies.
Speaker 2 (07:29)
But you still have things like overtime pay discrimination.
Speaker 3 (07:37)
Sexual harassment discrimination will fall under sort of the standard pre-Bostock, race, age, disability, national origin, all of those. That is what discrimination used to entail. And now on a federal level can include sexual orientation and gender identity, but not at the state level. And then wage labor hour overtime cases, huge in the bar industry. So being in a city like Philadelphia with a ton of bars, we’ve seen a big uptick in those types of cases and then sexual harassment being sexual harassment. So, yes, all of those. And then from the LGBTQ perspective, I would say my transgender clients are most heavily discriminated or more frequently in terms of calls that I receive. And because I think it’s easier to be able to tell, I feel like from with an LGB perspective, the discrimination can be more covert, where it’s harder for the employee to pinpoint, oh, this is why I’m being discriminated against. Whereas with trans folks, the discrimination just tends to be more blatant. That was where I was looking for earlier when I said brash.
Speaker 2 (09:07)
So, Angela, somebody’s in their car right now who is part of the LGBTQ community and they are having a problem, but they’re afraid to come forward because they don’t want to lose their job. What do you say to those people?
Speaker 3 (09:27)
You have to come forward anyways. So retaliation is another claim that we can bring. So if you’re being discriminated against and you’re scared to come forward, the reason you’re scared to come forward is you are scared to be retaliated against or having come forward and then ultimately lose your job because you came forward. So it’s a vicious cycle. So retaliation claim. So obviously, we have to be successful in the fact that you were discriminated against and then retaliated against, and then the damages become that much better for the person. But there are protections in the law, obviously, for that very fear.
Speaker 2 (10:13)
Because that’s an honest thing to be saying that they should come forward and not worry about losing their job because that would be another lawsuit.
Speaker 3 (10:25)
Exactly. And think about it, and I say this owning my own business and not in fear of losing a job in the midst of covid and inflation and one of the worst economies known to man. But if you are being discriminated against and you’re sitting in your car and you don’t know what to do, but you fear coming forward from fear of losing your job. Like, what’s the alternative, right, to stay in the job that you hate getting up every day, every morning going to work, too, and spend eight to 10 hours a day at the job out of the 24 hours time period of which you’re sleeping. So we’re looking at 16 to 18 hours of your day between sleeping and work, and that’s it. And you hate it. And you’re being discriminated against for the very essence of who you are. You’re going to ultimately end up losing your job potentially because you’re going to suck at it. Right. Like you won’t be giving your best. They’re probably building a case against you to try to find a way to fire you. The days are numbered either in terms of your mental health, being able to stay at the job or not showing up every day as your best and ultimately potentially getting a good discharge.
Speaker 3 (11:55)
Like you were terminated for cause because you weren’t really good at your job, but you also never came forward during all that time to provide context as to why you weren’t good at your job. So there’s nothing in writing protecting you. There’s not the reclaim to HR during the time period where you were getting written up for being late, for being short with people, for yelling at your boss. And so then I’m looking at terminating you, and all I see is you’re late, you’re not fun to work with, and you yelled at your boss. So we’re letting you go. And you’re like, but no, this whole time I’ve been discriminated against. It’s too late.
Speaker 2 (12:37)
I got you. Is it hard to prove harassment in the workplace?
Speaker 3 (12:43)
Yeah. I mean, it always has been because you have to prove that. Like, if I’m just going to fire you or let you go, but I haven’t said it’s because you’re a lesbian or I hate trans people. No one just comes out and says I’m racist. And so therefore I’m letting you go because I don’t like Asian people or what have you. That would just be too easy. Right. And so you have to ultimately prove that.
Speaker 2 (13:21)
Angela, you really know your stuff. Do you end up settling a lot of cases out of court?
Speaker 3 (13:31)
99% of the time.
Speaker 2 (13:33)
Really? That much?
Speaker 3 (13:35)
Yeah. Especially the blatant overt ones 99% of the time. But again, it’s one of the first steps that again, talking to that person in their car, driving to work, who is feeling discriminated against. The first step that you must take in order for you to ever be successful, to even have a settlement at a court or to go to trial, is to document everything that’s happening to you. That is key, having documentation on February 8 at 11:14 A.m., I got up to go get water from the water cooler and someone said something snide or something like that. I have clients keeping journals for up to two years prior to eventually retaining me to do something about what they’ve been documenting. But if you’re not documenting what’s happening to you, then and telling people. So first of all, documenting it. And then when it gets to a point that it’s egregious enough to make a complaint, file a complaint, you must tell someone. I cannot stress that enough. It’s the hardest thing people do because then and it’s real. But like, HR talks, right? Like, HR supposed to be confidential. But I have so many clients that don’t want to go report something to HR because HR will tell everybody.
Speaker 3 (15:11)
And so they might as well end up in the middle of the office and be like, you hate me because I’m trans. So with these small companies, it just doesn’t work the way that the law says it should work. And ultimately, the owner is put on the employee to do the hard stuff when they’re already going through probably mental health issues because of what they are going through at work. And then I tell them they have to do these things and it just feels too hard. So I would say half the cases I can’t even pursue because I don’t have a willing client to do these things that we’re talking about.
Speaker 2 (15:54)
Is it tough to separate someone being paranoid versus something really real happening to them? Do you get that? I would think especially people are still a little nervous about coming out, even though they shouldn’t be because it’s not a big deal anymore. Things have changed so much.
Speaker 3 (16:23)
Well, I mean, I would retract that, like you have changed and that’s awesome. But things have not changed.
Speaker 2 (16:36)
Though, right?
Speaker 3 (16:38)
Yeah. But again, do you know how many millions of businesses have less than 15 employees, including my own? So if I were bigoted and my assistant who wears nail polish and is a Cisgender man and identifies as male but comes in with pink nail polish, and other than me and this guy, we’re the only so there’s two of us. And so we live in Pennsylvania. So if I fired my assistant for being gay and having nails or discriminated against them and called them if feminine names and you look like a girl and we have clients coming in, I don’t want you to have nail polish while you hand them a pen. And whatever I said. Right.
Speaker 2 (17:27)
Is that discrimination?
Speaker 3 (17:29)
100%.
Speaker 2 (17:31)
They can’t wear nail polish if they’re a man.
Speaker 3 (17:34)
And I tell a man that they can’t wear nail polish, that sex discrimination. Because what I’m saying is that only the female sex should be allowed to wear nails.
Speaker 2 (17:45)
I got you. Okay.
Speaker 3 (17:46)
So that’s where sex discrimination comes in. Like, if I was a woman and rode a Harley Davidson and had very short spiky hair and more big Timberland boots and had a leather jacket and looked very manly, that sex discrimination. Dress more female-like. Right. You’re discriminating against me because I am a woman, but I look, dress, and have a tire that is society acceptable for a man. And you’re telling me I can’t do that, that is sex discrimination.
Speaker 2 (18:26)
Got you. So let’s give everybody your phone number. And I want people, people who are afraid out there. I think hopefully we told you in the first half of the show not to be afraid to come forward. You’re not going to lose your job. And if you do, your employer’s in big trouble, basically give everybody your phone number. Angela.
Speaker 3 (18:49)
Sure. 215-6452 415. And my website is giampololaw.com and I [email protected].
Speaker 2 (18:59)
So my next question again, I’m still kind of feeling my way with this, Angela. So if a person goes to apply for a job and I’ll use your analogy that they wear nail polish, should they wear nail polish on the interview? And if they get the job, then they start wearing nail polish, or should they do it in the interview?
Speaker 3 (19:33)
That’s a good question. And I answer this question a lot in career fairs and when I speak to law students and career services will ask me a lot about whether or not someone should come out on their resume and or in the interview process, maybe not just by wearing nail polish, but by asking questions like, do you provide benefits or adoption benefits is a big one for lesbian couples. Basically, in the interview process, you can ask about what is the LGBTQ culture while emailing back and forth with whomever you’re interviewing. Are they using pronouns in their signature block, like I have right now in my Zoom? She/hers. Things like that go a long way if you’re in the interviewing process of you predetermining whether you’re walking into a culture that will respect you for who you authentically are, as opposed to getting a job somewhere where you find out after the fact that you’re in a discriminatory homophobic culture. Right. And now you have the hassle again, the mental health issues. Should I quit? Should I resign? Do I deal with this? Do I sue, all of that? As humans, we just want to go to work.
Speaker 3 (21:12)
Right. And just live out our lives and be who we are at work. To answer your question, it’s a very personal answer that everyone has to answer for themselves if they want to come out in the interviewing process, whatever that looks like. Matty, in particular, who works for me. I don’t remember whether he had nail polish on when we first met, but that’s something that I wouldn’t even notice at this point. But I always go back to Michael Sam in football, who came out days before the draft purposely because the Cowboys were likely going to draft him. And that was the most homophobic NFL team at the time. And so he made an advocacy type decision where he purposely came out in order to let every NFL team know that if you draft me, you’re drafting a gay black man, which is a huge, big deal at the time. And of course, it ruined his career. So there’s that option, right? There’s another study at a Harvard where they took like an amazing resume, right? Like a CV to end all CVs, like three point 99, Magna cum laude, blah, blah, all the things. And the guy’s name on the resume was like, Jose Rodriguez, and he got three interviews, and then they changed it to be John Mitchell Williams III.
Speaker 3 (22:58)
And the guy got like 1013. Wow. Same exact CV, same exact information. But one is super, super white sounding rich name, and the other one Jose, and they got thousands and thousands of interview requests differently. So that bias. That subconscious bias. If you go in with pink nail polish, like, they’re not going to say I’m not hiring you because you have pink nail polish. But it may trigger that right. But it may trigger something in their subconscious bias where the unconscious bias, where they don’t feel comfortable and they may not even realize it, but they’re going to find something. They like so much about the woman who comes in after you that they will even have a narrative to themselves that they didn’t not hire you because you had nail polish. Like, that won’t even be their truth. But that could be ultimately the why and the what of what occurred. And it won’t even be their cognitive truth that they didn’t hire you because of that. Or they’re super bigoted. And it’s absolutely their truth. And they’re like, oh, I don’t want someone a man that wears nail polish in this office. I’m hiring anyone but him.
Speaker 3 (24:16)
Right. And then the third is, who cares? Are you someone that can have 19 interviews to get the one? Or do you absolutely need a job in the economy? There’s privilege associated with what I’m saying. There’s privilege with saying, like, I’m going to be like Harvey Milk and Michael Sam and come out and risk a paycheck when I have rent and kids to feed and all of these things. So it’s not something I can answer for anyone else. It absolutely has to be a personal decision making process based on all of those factors.
Speaker 2 (24:57)
Who do people go to within a company where they’re having problems? They go to HR.
Speaker 3 (25:04)
Absolutely. You have to go to HR. You have to go to HR. You have to go to HR. Even if HR is just made up of Betty and you can’t stand Betty and Betty is going to tell everybody the minute you walk out of the office, you have to have it. That will only do better for your case that Betty is a horrible HR person. But there’s no way around not letting Betty know, period. End of story. You must keep an objective documentation. You must then when it matters, update HR and make claims with HR and then obviously seek out private counsel. Those are the three main things that you must do. And then sort of a fourth optional thing is filing a claim with the EEOC or some sort of governmental agency that oversees. So if you don’t have a private attorney, you can go right to the EEOC. The EOC will contact Betty and sort of do their own investigation.
Speaker 2 (26:09)
And I can’t believe 30 minutes has already gone by.
Speaker 3 (26:13)
I know.
Speaker 2 (26:14)
You know what? Again, I hope we reached somebody today. I know I’m in a learning stage, and I learn every week from you. Your knowledge is just so amazing. Give everybody your phone number.
Speaker 3 (26:32)
It’s 215-6452 415 and the website is giampololaw.com. Or you can check out my [email protected].
Speaker 2 (26:42)
Angela, we will see you next week. I really enjoy talking about employment law with you. I think it’s so important.
Speaker 3 (26:50)
Sure. Yeah. We’ll do a follow up next week, and hopefully I’ll get to see you, kind of lonely here in this Zoom room all by myself.
Speaker 2 (26:57)
I hear you. Thank you, Angela.
Speaker 1 (26:59)
Thank you, Steve be sure to tune in every Tuesday at 10:00 a.m. When Angela Giampolo is the guest on ask the experts on 860 WWD Bam [email protected].