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The Closet Door is Glass: Solving Employment Disputes

by Kendra S. Kleber, attorney and counselor

I work as a lawyer, and a large part of my practice has involved helping people with problems at work that are related to their sexual orientation or their HIV status. Often their questions concern keeping their private lives to themselves, and handling co-workers who seem determined to make that impossible.

I am not referring to sexual harassment, which is unwelcome sexual advances or conduct that interferes with job performance. Because of its often predatory nature, and the risk of physical violence or harm it often implies, sexual harassment should be taken very seriously. Workplace sexual harassment is prohibited by state and federal law, whether it occurs between people of the same or opposite gender. (If you face the threat of physical injury, it would be appropriate to protect yourself and contact the police. Did you really need me to tell you that?)

In this article, I offer some general thoughts on handling problems at work that do not involve the risk of physical harm. I am not offering legal advice, and neither I nor the publisher of this article have established an attorney-client relationship with you, the reader. For assistance about  your own situation, contact a lawyer in your state who can give you advice based on his or her analysis of the local laws and the facts that you describe.

You’ve got a job and you want to keep it, at least for the time being. You have a feeling for the character and personalities of your co-workers and supervisors. You have a feeling, a sense, that you are being treated differently (picked on, passed over, unnecessarily criticized, more closely scrutinized, whatever) because of your sexual orientation, or your HIV status, or your gender, or some other pinpoint-able reason. You want to know if there is anything you can do to make it stop, without leaving your job.

Here's the thing: You’ve gotten as far as you have on the basis of your personal charm, your intelligence, and your professional background. You are bright and personable; probably brighter than is really required for the job you are doing. So trust your instincts: if you think a problem is brewing, take steps to control it before it controls you.

Evaluate everything you know about the problem and the people involved. Then set your goals and prioritize them. Manage the problem by paying attention to what is happening around you, objectively. Document what you see: in notes, on a calendar, in a journal. And keep that documentation at home. Watch for patterns: is the situation actually worsening, or does it just seem that way because of factors such as your own stress level, work load or health?

If you like your job, say so. If you are taking steps to become even more valuable to the company, explain how. Present your problems to people who can help in the context of your willingness to solve them creatively and your interest in seeing them solved. Make it easy for others to want to be helpful. Show them "what’s in it for them," without making threats. You want the decision-makers in your company to do the right thing and help you, because they want to - not because you can force them.

Maintain some professional distance from your co-workers. Yes, that’s terrible, but this is real life. This is obvious stuff, but that also means these are the easiest guidelines to toss aside. Once you confide in a co-worker, there is no taking it back. And since almost all workplaces involve some level of competition, you’ve added to the arsenal of your opponents when you share your health status, or your sexual orientation. If you must confide in someone, please understand that lawyers, doctors, psychiatrists, psychologists and priests are all obligated to keep the confidences of their clients strictly private (unless you are confessing a crime, but that is another article for another time). "Co-worker" is not on that list.

Be realistic. Rather than becoming belligerent and resentful of an inquisitive supervisor, look at things from the other side. If it feels like you are being persecuted every time you schedule a meeting out of the office, consider how many meetings its been, when they’ve occurred, and if you’ve followed company policies about scheduling and follow-up. The last thing you want is for someone to sit down with a list of your days out of the office next to the home team baseball schedule, and figure out that every time there has been an afternoon game, you’ve been off "at a meeting." It would be too easy to just assume you’ve been goofing off.

Eliminate problems by volunteering to do that which your employer could theoretically force you to do. For example, under the Family Medical Leave Act, an employer could ask for a doctor’s note to explain absences due to illness. A former client felt that his supervisor resented all the days off he was taking as he adjusted to new HIV medications. Rather than wait until his boss demanded a note, I advised him to tell her that he didn’t want her to wonder if he was really sick, so he would just bring a note in from his doctor. From then on he asked his doctor to certify that his absences were due to his serious medical condition. (It is not necessary for the doctor to provide the actual diagnosis.)

If the problem abates over time, then you have new insight into workplace politics that you can use to make long-term career plans. If the problem does not resolve, then answer three questions:

1. Are your rights being violated?

2. Are your rights being violated in such a way that you want to do something about it?

3. What price are you willing to pay to stop it?

If the situation is not getting better as you begin really studying it, then call a lawyer. Now. Get local legal advice, before the problem becomes more severe, or irreversible.

What you want is guidance on the particulars of law in your state, and a candid and objective opinion on your rights and how you can protect yourself. If what is happening is not unlawful, knowing that may help ease your mind and simplify your decisions about your future. For example, the law provides protection from discrimination at work based on disability, race, gender, marital status and ethnic background. However, it is still not against the law to be annoying, ignorant, or an interfering busybody.

Call a lawyer who someone you trust has found to be helpful and sensitive. Briefly describe the problem, and what you want, to the lawyer: "I am concerned that I may be having problems at work related to my fill-in-the-blank, and I would like to ask your thoughts on how I might handle this." Then ask what the fee would be to spend one hour talking with the attorney, and go.

Ask about your rights. Employment discrimination is against the law, and it occurs when you are being treated differently by your employer because of some personal characteristic. The "employer" could be a direct supervisor or anyone else who acts on behalf of the company. If the employer had a legitimate business reason for the action, it may be excused. And if the employer acted because of a characteristic which is not specifically protected by law, then it may be difficult or impossible to prove that he broke the law.

Employment discrimination based on sexual orientation is not prohibited by federal law (except for non-military federal employees), and only a few states prohibit it. Discrimination on the basis of a disability, including HIV status, is prohibited in most cases by the Americans with Disabilities Act.

If you find that you are not protected by a relevant law, the lawyer should be able to advise you on strategies to control or avoid the problem. An objective opinion is invaluable, even if the results are common sense suggestions. Talking to a lawyer at this stage is similar to going to the doctor with flu symptoms: you probably don’t have a serious illness, but it is good to know for sure. This is preventive legal care, and you deserve it.

Finally, have a "Plan C" that may involve looking for another job.

This is your life, your job, your stress level. You’re a grown-up: how you handle it is up to you. Turning to a lawyer for advice when you have no intention of ever filing a lawsuit may seem expensive and unnecessary, but a lawyer can help you keep your closet door sealed until you decide to open it. Taking steps to prevent employment disputes from escalating is the best, cheapest and fastest way to solve them.

Kendra S. Kleber is an attorney, admitted to practice in Michigan and New York. Her nationwide practice involves Social Security disability benefits claims for people living with HIV/AIDS, and the occasional question on discrimination in the areas of employment, housing, medical care, contract rights, collections and insurance. Ms. Kleber can be reached via e-mail or telephone as shown below.

(c) 2000-08 Kendra S. Kleber. This article was first published on the Gay Financial Network website, www.gfn.com.