Though the equality divide seems to be inching closer with the repeal of “Don’t Ask, Don’t Tell” and other protective enactments, provisions are continuously being made to seal the gap for the LGBT community. These changes are not an accessory but a necessity in today’s society. A prime example is Wall Street, which is very much still a patriarchal and discriminatory climate. The Dodd-Frank 342 bill is a catalyst of change in diversifying America’s financial industry. It tackles the issue of LGBT discrimination in the workplace, which is by no means an outdated issue. It is critically important that people understand their rights and are attentive of the legal compensation available to them when faced with discrimination in the workplace. This is especially imperative for the LGBT community since we can face discrimination based on gender identity and sexual orientation as well as race and ethnic background.
U.S. Rep. Barney Frank (D-Mass.) is one of the leading visionaries of the Dodd-Frank 342 act, which protects the LGBT community in the financial industry. One of the first openly gay members of Congress, Frank has been a strong advocate for equality. With the recent success of the repeal of “Don’t Ask, Don’t Tell,” Frank’s response to the importance of the repeal and LGBT issues was, “It is to be protected against violent crimes driven by bigotry, it’s to be able to get married, it’s to be able to get a job and it’s to be able to fight for our country … For those who are worried about the radical homosexual agenda, let me put them on notice. Two down, two to go.” The agenda for change continues with the efforts laid out by the Dodd-Frank 342 legislation.
The act mandates race and gender employment ratios — quotas — that private financial institutions that do business with the government must observe. This provision is part of an overarching effort to bring reform to the financial industry within the broader efforts of the Dodd-Frank Wall Street Consumer Protection Act (H.R. 4173/ Public Law 111-203). It aims to create more than a dozen new financial regulatory offices and establish the Office of Minority and Women Inclusion.
The OMWI will monitor and ensure inclusion of women and minority groups, including the LGBT community, in the regulated entities and agencies it oversees. The office will set ground rules and establish criteria for these agencies to include women and minorities in recruitment efforts. If agencies do not meet new standards of inclusion, they will face appropriate action, up to or including termination of contracts.
Contracts are major facets of leverage. The new law states that agencies are required to establish contract proposals describing the procedures for selecting employees, to the extent that is legally permissible. This is a section that specifies diversity of the applicant as a factor in the hiring process. In the case that an agency fails to establish these measures, the law allows for the OMWI director to recommend to the agency head that the contract be terminated. Upon receipt of such a recommendation, the agency head may: (a) terminate the contract; (b) make a referral to the Office of Federal Contract Compliance Programs; or (c) take other appropriate action (Section 342(c)(3)).
The law has a widespread effect on various entities not limited to domestic financial agencies. Provisions are aimed at large financial institutions but smaller institutions are affected. Many of the provisions give a basic structure of reform, leaving regulators to fill in the details.
The effect of this diversity clause has caused some expected backlash, especially Republican opposition. It has been deemed overarching and ineffective, as most of the agencies that are being targeted already have what they believe to be overlapping nondiscrimination laws. Most of the opposition claims it to be an example of big government, declaring it to be vague and lacking teeth.
Regrettably, some of these allegations may hold true. While Section 342 would require that investment banks, contractors and other agencies be, to some extent, at the mercy of regulators, it does not offer specific solutions. Existing non-discrimination laws are not clearly distinguished from some components of the Dodd-Frank 342 provision. For these reasons, the bill may not be as effective at creating change through substantial quota measurements as hoped by progressives. Terms like “fair inclusion” are not concretely defined. Moreover, it lacks thorough guidelines for entities eager to fully comply with the standards.
If you are facing discrimination in the workplace, it is important to trust your instincts. Do not dismiss acts of discrimination as “just part of the job.” Everyone has the right to be treated equally and fairly at work. If you suspect discrimination, begin by taking notes. Keep a record of the derogatory language, racial slurs or comments you hear. This paper trail could become important in the future. You should file a report with the human resources department or, if your company doesn’t have one, talk to your management staff. If your company does not take action, you can file a charge of discrimination with the Philadelphia Commission on Human Relations, Equal Employment Opportunity Commission or the Pennsylvania Human Relations Commission, depending on who has jurisdiction. The agency will typically ask your employer to answer to your charges and may even conduct an investigation, requiring documentation and explanations for actions. Finally, you could file a lawsuit.
While the Dodd-Frank 342 law is a catalyst for change in diversifying the financial industry, the issue of workplace discrimination in the LGBT community is pervasive. With more laws and protections aimed at leveling the playing field and bringing awareness to the inequity we face, we are one step closer to equality.
Angela Giampolo, principal of Giampolo Law Group, maintains offices in both Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains a blog, www.phillygaylawyer.com. Send her your legal questions at [email protected].