In mid-May, Cottonwood Heights-based online retailer Overstock.com updated its antidiscrimination policy to include gay, lesbian, bisexual and transgender workers. The company now offers employees of all sexual orientations and gender identities more protections than state law allows.
Since news radio station KCPW broke the story on May 14, Overstock.com CEO and Chairman Patrick Byrne said he is surprised at how much attention the policy has received.
“I’ve always thought of ourselves as LGBT friendly,” said Byrne. “I’ve always thought we had an obligation to be blind to anyone’s gender identity and such. I made it clear in the executive ranks years ago that we were never going to discriminate based on LGBT issues.”
However, Byrne said the company discovered recently that its practice of not discriminating against gay and transgender employees was not officially reflected in its policy. The inclusion of sexual orientation and gender identity in the employee handbook, he said, simply codifies the policy the company has followed for years.
Overstock.com’s employee handbook now reads: “It is our policy to provide equal employment opportunity for all applicants and employees. This policy includes our commitment to ensure that all employment decisions are made without regard to race, color, religion, gender, national origin, disability, pregnancy, veteran status (including Vietnam era veterans), age, sexual orientation, gender identity, or any other non-job-related characteristic protected by law. Employment activities that will be administered consistently with this policy include recruitment, hiring, compensation, benefits, transfers, terminations, leaves, discipline, promotions, training, and social and recreational programs. This policy also prohibits unwelcome actions, words, jokes or comments based on an individual’s sex, race, ethnicity, age, religion, sexual orientation, gender identity, or any other legally protected characteristic.” Byrne added that Overstock.com had also created unisex bathrooms a few years ago to accommodate transgender employees in the midst of transitioning their sex.
Although Overstock.com’s antidiscrimination policy is now gay and transgender-friendly, the company could still conceivably fire employees because of their sexual orientation or gender identity. This is because Utah law currently offers no such protections for employees.
Nevertheless, Overstock.com’s policy still provides a measure of protection to its gay and transgender workers, Todd Hess of the Utah Human Rights Campaign told KCPW. If an employee is fired on grounds of being gay or transgender, Hess said that the employee could sue for breach of contract.
“[Y]ou could sue the company as an individual and say, ‘You breeched your contract with me because you have it in your employment policy that you won’t discriminate based upon sexual orientation or gender identity,” said Hess. “But, you know, then you have to go to court, and again it’s the individual who has to fund that lawsuit.”
Byrne agreed with Hess. The policy, he said, “gives the employee the ability to say, ‘This is a part of the contract I signed with you when I joined the company.’ That is the legal difference as I’m told.”
If state employment law covered sexual orientation and gender identity, employees who think they have been terminated solely because of either could contact the Utah Labor Commission, which investigates such complaints at no cost to the employee. In March of this year, a labor commission representative testified before the House Business and Labor Committee that the office receives approximately three calls a month from fired gay and transgender employees asking what recourse they have under Utah law. A bill before that committee by Rep. Christine Johnson, D-Salt Lake City, that would have added sexual orientation and gender identity to state antidiscrimination law never made it to the House floor for debate.
Despite its gay and transgender-friendly practices, Overstock.com was not immune to criticism—criticism, that is, for being a business based in Utah. Shortly after California voters passed Proposition 8, which re-banned gay marriage in that state, some gay rights activists called for a boycott of all Utah businesses — in order to punish the Utah-based LDS Church for supporting Proposition 8. In a thread on Investorvillage.com begun on November 10, some Overstock.com investors vowed to sell their stocks and take their business elsewhere.
“The company chose to locate in a state that apparently values religious dogma over the basic rights of citizens and from behind a tax exempt facade is willing to flex its financial muscle to force others to hew to the Joseph Smith view of the world,” wrote a poster with the handle “x_trapnel.”
In response to calls for a boycott, Byrne said he was invited to speak at one of Salt Lake City’s gay clubs about Overstock.com’s stance on gay rights. He credits that talk with helping the company’s administration realize that they needed to change their policy.
“I went down and gave a talk and answered questions,” he said. “That’s probably what drove these issues more to the forefront of the consciousness of the leadership of this company.”