Did Your Employees Call In Gay Today?

Today was the “Day Without a Gay” protest organized by gay rights activists, in an attempt to show how many gay workers there are in the American workforce.

As part of the protest, gay workers were encouraged to stay home and to refrain from spending money, also to show the collective impact gays can have in the economy.

Obviously, being gay is not generally a valid excuse for an absence, though employees could be free to utilize vacation or other leave time, assuming they comply with other applicable employer policies. Additionally, an employer is permitted to enforce attendance policies with respect to employees who do not comply with such policies in attempting to “call in gay.”

I do presume that the organizers of this event believe that “calling in gay” would be a valid excuse for missing scheduled work, like calling in sick would be. However, employers certainly are free to recognize the absence if they so desire. On the other hand, if an employer does not wish to support the cause, he or she may be nervous about enforcing attendance policies with employees who clearly are in violation, for fear of a discrimination claim.

Sexual orientation is not a protected class under any federal anti-discrimination statute, though. Some states do protect sexual orientation (PA does not), and among the various employment law changes suggested by President-elect Obama is the amendment of the Civil Rights Act to include this type of protection.

I do not anticipate a significant amount of fireworks to be caused by employers attempting to figure out how to handle employees who do literally “call in gay,” but it will be interesting to see what impact, if any, the protest has on American workplaces.

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