Will Corporations Now Take Their Cues from the Right?

Major corporations — especially those near the top of the Fortune 500 heap — are hardly the vanguard of social consciousness in this country. But they have often recognized that their ability to keep and retain the best and brightest employees often requires them to adopt more progressive policies than the minimum required by law. This institutional support has then been leveraged into legislative support, where, in the opposite of the usual paradigm, legislatures adopt progressive policies to keep businesses and their constituents happy. Microsoft just turned this progression on its ear in the state of Washington. Will other corporations start to play along?

Only sixteen states make it illegal to discriminate on the basis of sexual orientation. There is no federal law prohibiting sexual orientation like there are other federal laws preventing other forms of discrimination: Title VII (race, color, sex, national origin, religion), the ADEA (age) and the ADA (disability). This is despite ongoing efforts for decades to pass federal protections, such as the Employment Non-Discrimination Act (ENDA). While there are several hundred cities, counties and other municipalities with antidiscrimination provisions including sexual orientation, the ability to enforce these provisions varies widely, with some areas having administrative agencies specializing in investigating and deciding claims, to others where there may be a legal right, but there is no remedy when the provision is violated.

Aside from moving to the coasts, some major metropolitan areas, or the few other areas where there are protections, one other significant way employees can be protected is through a company’s anti-discrimination policy. Regardless of the law in a particular state or municipality, a corporation is free to determine what policies best fit the individual corporate culture, and to develop a set of policies that reflect that culture. Whether it’s a top-down decision made by an individual or small handful, or the product of aggressive advocacy by individual employees or employee groups, these policies send a signal to current and potential employees about what they might expect from their employers: an open and welcoming environment, or one that has the potential to be openly hostile towards those who don’t fit in.

Every year, the Human Rights Campaign (HRC), a leading gay rights advocacy group, publishes its Corporate Equality Index, ranking corporations on their commitment to GLBT (gay/lesbian/bisexual/transgender) equality. Hundreds of those companies surveyed by HRC indicate that they have an antidiscrimination policy that includes sexual orientation discrimination. In looking at just the 62 companies that have a 100% rating on the Corporate Equality Index (which goes far beyond merely having an inclusive antidiscrimination policy), over four million employees have these internal corporate protections. (See HRC WorkNet.) Like municipal antidiscrimination ordinances, they vary widely in their enforcement (and few give employees any kind of legally enforceable rights), but the protections nonetheless provide an important signal to employees: both those who might otherwise discriminate, and those who may need protection from discrimination.

Microsoft has been a company that has led the way, in many respects, including its inclusiveness. Its Equality Index ranking of 84% is just one step away from a perfect record, and its recent addition of gender identity to its antidiscrimination policy would have given it a perfect record under the most recent set of criteria. Between offering domestic partnership benefits and supporting its gay employees’ group, most looking at Microsoft would acknowledge its progressive efforts when it comes to its GLBT employees. Until now.

The state of Washington was on the verge of becoming the 17th state to add sexual orientation to its anti-discrimination laws, after 30 years of failed efforts. With the support of the Democratic governor, Christine Gregoire, and a Democratic majority in both legislatures, passage of HB 1515 to change Washington’s Law Against Discrimination seemed reasonably likely to happen, if not assured. However, the measure failed by one vote in the state Senate. (See Washington Gay Rights Bill Defeated.)

It then came to light that Microsoft had rescinded its support for the measure, after it had been heavily lobbied by a local evangelical minister, Ken Hutcherson, who threatened to organize a boycott against Microsoft if it did not withdraw its support for the bill. (See New York Times article.) In a company-wide e-mail to employees, Microsoft said that the move was not in response to Hutcherson’s lobbying or boycott threats, but part of a larger reconsideration of the company’s legislative agenda. After Microsoft’s efforts came to light, the company’s founder, Bill Gates, indicated that the company might reconsider its position in the future, but made no promises to do so. (See New York Times article.)

Will Microsoft be only one of many major corporations to cave to pressure from the Right, or to “tighten” its legislative agenda? Will this apparent victory embolden anti-gay activists to increase their pressure on other companies with progressive policies, in the same way their political advocacy has been so successful recently? Or will having this battle played out so publicly discourage other companies from retreating from their progressive advocacy? Many companies in the days ahead will be asking themselves the questions that so troubled Microsoft, as CEO Steve Ballmer wrote:

When should a public company take a position on a broader social issue, and when should it not? What message does the company taking a position send to its employees who have strongly held beliefs on the opposite side of the issue?

(See Seattle Post-Intelligencer article.)

If employees who support inclusiveness and care about the existence of anti-discrimination policies do not speak up, both within their companies, and in wider legislative and political debates, their voices will be outweighed by those who oppose these policies. Instead of continual advances towards greater inclusiveness, we are likely to see many more retreats, as demonstrated by Microsoft’s latest actions.

More Information:

Workplace Fairness: sexual orientation discrimination (newly updated!)
Human Rights Campaign: Letter to Microsoft CEO Steve Ballmer
Equal Rights Washington

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.