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 lifetime 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 workplace 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 for 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. “If the employer knows nothing about the person’s sexuality, privacy laws restrict the company from inquiring about it.”
Suppose the employee accepts the assignment and is arrested and imprisoned in Malaysia. The employer now faces the possibility of a lawsuit for negligence due to a failure to inform the employee about the risks for LGBT people in the country.
This may seem like a “damned if you do, damned if you don’t” quandary, but legal precedent is slowly providing more clarity. A recent case involving an employee with a multicultural family illustrates the potential issues. In the on-going lawsuit, Huang v. MWH Global, the plaintiff alleges that he moved to Qatar at the company’s request to work on a major infrastructure project. The employee brought his family with him—he and his wife are Asian American and their adopted children are African American. The lawsuit claims that the employee and his family were not apprised of the foreseeable dangers they would face in the country, which purportedly has a negative view of multiracial families and a history of associating such families—especially Asian parents with African children—with child trafficking.
Further, the plaintiff alleges that the company did not conduct a risk assessment prior to the transfer, simply deeming the country safe for the family. When one of the children died unexpectedly of cardiac arrest linked to a longtime food-related disorder, authorities arrested the parents and charged them with starving the child to death. Prosecutors also alleged that the parents had participated in human trafficking and had purchased the three children from Africa to harvest their organs. The two remaining children were seized and placed in an orphanage.
After 10 months of detention by the police, the Huangs were declared innocent and released from custody. They subsequently sued MWH Global in a civil lawsuit for negligence, indemnity and negligent infliction of emotional distress, arguing that the company should have conducted a risk assessment that fully warned them of the dangers.
“Clearly something very similar to the Huangs’ situation could occur with an LGBT employee who is not informed of the legal and physical dangers of working in a country where same-sex relations and marriage are illegal,” Inamine said. “These kinds of employment liability issues are sure to become even more complex in the future.”
Steering a Proper Course
What should employers do? Legal experts agree that open and frank conversations with employees regarding business travel and relocation assignments are necessary before sending them abroad. “The most important thing for companies to do is be transparent,” said Joe Solmonese, former head of the Human Rights Campaign and now managing director and founding partner of corporate consulting firm Gavin/Solmonese.
Companies also must enhance due diligence with regard to the political, cultural, social and legal implications of traveling to or working in a country for an extended period of time. “If fully apprised of the risks in a particular region, the decision then must be left up to the employee whether or not to take the assignment,” Sedler said.
Other experts agree. “Ultimately, you have to leave it up to the employee,” said Deborah Graham, vice president of consulting and learning resources at Paragon Global Relocation, which provides relocation services to employers. “He or she must be presented with a security briefing that lays out the various dangers, whatever they may be. Then, the employee has to accept the responsibility for declining or taking the assignment.”
What about the privacy issues associated with asking questions about an employee’s sexuality? The answer is to simply not inquire, the attorneys said. Rather, present the employee with a thorough risk assessment, preferably put together by an objective outside global security company, and leave the decision up to the employee.
“If the report identifies the country as one of the 10 where homosexuality is punishable by death, and the employee is being considered to represent the company in negotiating a deal there, he or she—if gay or lesbian—would likely pass up the opportunity,” Inamine said.
If the employee makes the decision to take the assignment, the employer is fully responsible for maintaining his or her security. The employer should take all necessary precautions to make sure the employee and his or her family is fully protected—again without inquiring about the person’s sexuality—and be prepared to bring them home if need be, according to Beth Zoller, legal editor at XpertHR, an online HR resource on employment laws and practices.
She also advised that, if possible, employers should provide openly LGBT employees with an alternate relocation assignment opportunity to make the decision more impartial, further reducing the risk of employer liability.
Solmonese said that such conversations need to introduce the risks of relocation head-on. “Most women, LGBT employees and people of color would appreciate a conversation where the employer says, ‘We are investing in your upward mobility by giving you opportunities to step out on the international stage, but we’re also invested in your safety and security. In this country, there is a chance you may be harmed or arrested. If you accept the assignment, we will do everything we can to protect you, but you must understand and appreciate the risks,’” he said.
Mark T. Phillis, shareholder at Littler Mendelson and co-chair of the law firm’s diversity and inclusion council, said some countries’ laws make a dicey situation less problematic. “If same-sex relationships are illegal in a country, it will deny a visa or residency permit to the male spouse of a male employee,” he explained. “If this is indeed the case, the employer may want to assist the LGBT employee by providing extra leave to come home and maintain the familial relationship.”
Outside help is also available to both employers and LGBT employees. The U.S. Department of State has an LGBT section on its website that evaluates the laws, social issues and safety considerations in each country, and is updated regularly. Further, the State Department provides the Smart Traveler Enrollment Program, a free service to U.S. citizens who are traveling to, or living in, a foreign country. To use the service, an employee enters information about an upcoming trip abroad, then receives current travel warnings, alerts and country-specific information from the government.
“Third-party websites like Stonewall are another resource to use to navigate these issues,” Phillis said. He counseled that companies should evaluate these LGBT resources and approach such decisions no differently than they would assess the risk of sending a high-ranking female employee to a Middle Eastern country to negotiate an important deal, given the discrimination against women in the workforce in the region.
While all of these tactics help shield employers from liability, some companies are taking a different approach that avoids the issue altogether: simply refusing to conduct business in countries that have a poor human rights record. A generation ago, many companies refused to conduct business in South Africa, ultimately forcing the end of apartheid. “American businesses have proven they can have a significant impact on public policy,” Solmonese said. “Why not have these conversations now and get in front of this issue?”