August 20, 2016

The Valuable Perspectives of LGBT Lawyers in Business Law Practice

It has become something of a cliché these days to say “diversity is good for business.” While empirical evidence can be obtained to support this view, concrete examples are sometimes more difficult to find. This is particularly true in the field of business law, where our work does not often intersect with issues of race, gender, gender identity, or sexual orientation. In this article, we will offer a few examples from our practices where being an LGBT business lawyer has had a concrete impact on the practice of law. This is not to say that only an LGBT lawyer would create such an impact, rather being an LGBT lawyer highlighted the issue or facilitated awareness of it.

Dress Codes and Employee Handbooks

One of the first projects I ever worked on was writing an employee handbook for a client, a project that cut across both business and employment law. I started with a standard form, checked to make sure everything still conformed to the law, and worked with the client to make specific changes. A few hours into the project, I arrived at the “dress code” provision, which read:

The Company requires employees to be neat, clean, and professional. The Company expects all personnel to exercise good judgment and dress appropriately for their jobs. The following factors should be taken into consideration when determining appropriate dress: (i) The nature of the work; (ii) The nature and extent of public contact, if any, and the normal expectations of outside parties with whom they will work; and (iii) The expectations and policies on appearance and dress at customer sites if the employee is working at a customer location. (Emphasis added)

In law school, my journal note had been on transgender discrimination under Title VII, so the italicized words immediately jumped out at me as words that are normally gendered, meaning the expectations of what is “professional” or “appropriate” will differ for women and men. Like any good student of employment law, I was familiar with the Ninth Circuit’s famous Jespersen v. Harrah’s case upholding sex-differentiated dress codes against a Title VII claim. However, having recently authored an article on transgender discrimination myself, I also knew that activists were eager to see Jespersen overturned and would jump at any chance to challenge it. I took the issue to my boss and explained why I thought it invited a lawsuit. After some discussion, he agreed that the form should have a note discouraging the use of dress code except where the client thought it necessary, and so a note was added.

This may seem like an almost inconsequential change. Being in Silicon Valley, most of our clients explicitly reject the idea of a dress code for other reasons, and would almost certainly never seek to enforce it even if it were in their employee manual. Still, encouraging our clients to remove it achieves two positive outcomes. First, it protects our clients from nuisance lawsuits in the event one of their managers actually does dig up the policy and tries to enforce it. Second, it makes our clients more inviting places for transgender (or other gender nonconforming) people to work. If the client is at all interested in encouraging diversity, being able to show a positive, welcoming environment will only add to the success of their outreach efforts.

Attracting Nontraditional Clients

Being LGBT also offers some nontraditional pipelines for business development. I currently work with a number of nonprofit organizations and law schools that funnel clients to our office, in part, because we’ve shown an interest in and ability to work with nontraditional and underrepresented clients. For example, last year I met with one of the program directors at the San Francisco LGBT Center about doing a series of talks on the ins and outs of starting a company. The program aimed at helping LGBT entrepreneurs start businesses. Since our discussion he has sent me a handful of clients who needed business services including the owner of a bike shop who needed help forming an LLC and the owner of an apparel store in a trendy part of town who needed advice on a lease.

Another example is my work with the UC Hastings Startup Legal Garage, which is housed in the Institute for Innovation Law. The program collects prospective clients from all over the Bay Area, and works with a number of incubators and accelerators dedicated to minority- and women-owned businesses to provide needed legal services. The program then pairs these clients with one or two law students, and sets them up with an outside lawyer who oversees the law students and their work product. Once the semester is over, the clients stay with the firm. I serve as a supervising attorney in the program, and I’ve been assigned a total of seven clients in the past two years, all of whom have continued on with the firm after the program. I have been so successful not merely because I love working with students (I also happen to be a lecturer at Santa Clara Law School), but because, as an LGBT mixed-race lawyer, I can connect with clients from a variety of backgrounds. The clients we’ve acquired through this program include an entertainment company run by a Latina founder, a delivery cooperative founded by an African-American woman, and a hardware company founded by an African-American man.

Certainly being a gay man was not the sole factor in being able to bring in these clients, but being gay was either the starting point or it was a key factor in keeping the client. As a gay man, I wanted to volunteer with the San Francisco LGBT Center, which lead to a number of clients being referred to us. UC Hastings is comfortable referring minority- and women-owned companies to me because, as an LGBT mixed race attorney, I can relate to their life stories and the particular challenges they face starting a business. Like most other attorneys in the field of business law, I also have relationships with more traditional pipelines for business development, such as venture capital firms, incubators, and accelerators, but as an LGBT attorney working in business law, I also have access to nontraditional business development avenues or, at least, I know where to look for them.

Business Operations and Employee Benefits

Corporate human resources departments are generally well versed in the provision of maternity leave benefits and the development and implementation of maternity leave policies. Many employers also grant much more limited paternity leave benefits to the fathers of newborn babies. Because the majority of any given company or firm’s employees are heterosexual who conform to traditional gender roles, this practice works well most of the time. They may make occasional exceptions on a case-by-case basis, but human resource professionals generally accept this arrangement as an adequate status quo.

Unfortunately, the gendered maternity vs. paternity leave policy works less well for LGBT or gender non-conforming couples. Through good fortune, my husband and I were lucky enough to adopt a newborn baby several years ago. When any couple adopts (regardless of orientation), a decision is normally made about who will stay home with the child either temporarily or permanently. In other words, the couple must decide who will take the typically more generous maternity leave, and for gender nonconforming couples that decision may not turn on gender even though the policy has “mothers” in mind. We were fortunate that our employers have instituted “primary” and “secondary” caregiver policies under which anyone of any gender can take time off following the birth of a child or adoption without question or completing forms that do not correspond to your gender or situation.

When reviewing the question of benefits with a client, I often use my own personal experience with my firm as a teaching tool to demonstrate the benefit of loosening traditional maternity/paternity leave distinctions in favor of a more flexible, gender-neutral approach. Primary and secondary caregiver leave policies can remove the administrative hurdles of gendered policies, and better reflect the realities of modern workplace. They will also help attract and keep LGBT employees and their families, which improves the diversity of the workplace.

Concluding Thoughts

Being an LGBT lawyer, it can sometimes feel as though our professional identity and our LGBT identity are separate, so when the two intersect it can be surprising. As we have tried to point out here, however, our LGBT identities can offer positive contributions to our practice of law. Being LGBT makes us particularly sensitive to issues of gender and inequality, and highlights potential risks of litigation as demonstrated by the incident involving the employee handbook. Being LGBT can open up nontraditional avenues for business development. Finally, being LGBT can highlight hidden issues within our own firms such as parental leave policies, where gendered policies that worked for generations no longer reflect workplace realities. These are concrete examples of how diversity, particularly in terms of gender identity and sexual orientation, can bring valuable contributions to the practice of law.