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The Cost of LGBT Exclusion
How Discriminatory Immigration Laws Hurt Business
It is our pleasure to introduce “The Cost of LGBT Exclusion: How Discriminatory Immigration Laws Hurt Business.” This data-driven white paper documents the talent mobility challenges faced by Lesbian, Gay, Bisexual and Transgender (LGBT) employees of global businesses due to discriminatory domestic immigration laws. Out on the StreetTM (OOTS) and Immigration Equality are launching this white paper as the second in OOTS’s “Thinking Outside the Closet” series. This report highlights differences between select countries’ treatment of LGBT families and the ways in which immigration discrimination impacts talent mobility and companies’ bottom line. We outline pathways to achieving a permanent solution for LGBT families and the central role that business can play in resolving the costly recruitment, retention and development challenges they and their employees face. This report was written by Christopher Fleming, Jonathan Saw and Natalie O’Brien. It demonstrates the negative impact of discriminatory immigration laws on companies by examining the United States. It also contains ﬁndings from surveys that ask about the experience of LGBT employees and employers within the immigration context. We would like to thank our great partners, AllOut and the American Council on International Personnel (AICP), for their help with these surveys. We plan to continue to collect data from members of both our organizations throughout the year and at all OOTS summits — New York, London and Hong Kong — to further develop the business case for change. We would like to thank all the member organizations of OOTS and the Business Coalition for the Uniting American Families Act for their efforts to improve the career opportunities and lives of LGBT employees around the world. We look forward to your thoughts and continued partnership in making immigration inequality a relic of the past. Best, Todd Sears Rachel Tiven
Founder, Out on the Street Principal, CODA Leadership
Executive Director, Immigration Equality
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About Out on the Street
Out on the Street brings together senior leaders at the Director level or higher, from the international ﬁnancial services community and select allied industries, with the goals of: Creating a senior network of LGBT leaders on the Street Creating opportunities for business development, as well as deepening current client relationships through LGBT connections Leveraging straight allies within the organizations Helping their companies attract, retain and develop LGBT employees Improving the perception of Wall Street in the LGBT community and on campus Members of Out on the Street realize that despite the progress in corporate policies, signiﬁcant challenges still remain for the LGBT community. They understand that very often corporations and their policies can lead government and societal change and can contribute to the bottom line by driving innovation and forward-thinking ideas. Learn more at www.outonthestreet.org.
Members of Out on the Street (as of February 1, 2013)
Bank of America Merrill Lynch Barclays Citi Credit Suisse Deutsche Bank Ernst & Young Goldman Sachs HSBC KKR KPMG Morgan Stanley RBS UBS
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About the Business Coalition for the Uniting American Families Act
The Uniting American Families Act is a bipartisan bill pending in Congress that would end the exclusion of LGBT people from family-based immigration beneﬁts. Immigration Equality Action Fund convenes the Business Coalition for the Uniting American Families Act, a membership group of global businesses seeking to end the brain drain they face due to immigration laws that discriminate against their LGBT employees. Get involved by contacting Chris Fleming, Senior Manager of Corporate Partnerships at Immigration Equality at email@example.com.
Members of the Coalition (as of February 1, 2013)
American Airlines Bain & Company Barclays Bausch & Lomb BNP Paribas Boehringer Ingelheim USA Bristol-Myers Squibb Carlson Cisco Systems Citi Diageo The Dow Chemical Company eBay Ernst & Young LLP The Estée Lauder Companies Fifth & Paciﬁc Companies Goldman Sachs Google Intel Marriott International Medtronic Merck & Co., Inc. Nike Ogilvy & Mather Omnicom Pﬁzer Replacements, Ltd. Starwood Hotels Texas Instruments Thomson Reuters US Airways
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A globally mobile workforce is today’s reality. Successful companies source talent from around the world and move people across borders to capitalize on market opportunities and develop next-generation leaders. These moves are often complicated and costly — they involve visa requirements, tax adjustments and tailored compensation and beneﬁts packages. Companies nevertheless continue with cross-border hires and assignments because employees and business demand it and because they can usually surmount the hurdles imposed by a given jurisdiction. For LGBT employees and their families, on the other hand, global mobility is often more complicated, if not impossible. Some countries outlaw homosexual acts, in the worst cases punishable by death. In others, less deadly but inconvenient legal restrictions add additional cost. But while many developed nations have recognized the rights of LGBT couples, the United States lags behind, particularly in the area of immigration. The scope of this challenge is great. In a 2012 OOTS survey, 41% of LGBT respondents agreed with the statement: “I have had reservations about applying for a position in another country because I was concerned I would not be able to bring my spouse or family.” Interestingly, of the 21% who disagreed, almost 80% were single, indicating that a large majority of LGBT individuals may eventually share these concerns as they enter into relationships. What’s more, preliminary analysis of an AllOut survey showed that 3%–4% of their members who identiﬁed as LGBT and answered the survey had had these difﬁculties.
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LGBT families are not recognized under U.S. immigration law, creating a particularly serious form of discrimination for LGBT people, who may face family separation or exile as a result. In the race for global talent, this discrimination leaves the U.S. at a competitive disadvantage vis-à-vis its international competitors, many of which grant immigration beneﬁts to LGBT families. By examining the particular case of the United States, we can develop the business case for changing immigration laws to recognize LGBT families worldwide. Unrestrained access to talented individuals who drive innovation, generate new opportunities and lead major businesses is essential for sustained performance in the 21st century global economy. This study offers a range of solutions — from small-scale work-arounds at the employee level to direct advocacy and lobbying — that companies can undertake to resolve immigration discrimination against LGBT employees.
“As a global employer with operations around the world, access to and mobility of talent is critical to our success. Immigration restrictions imposed on LGBT families in any one country — be it the U.S. or anywhere else — are an issue for the entire business.” — Mark McLane, Chief Diversity Ofﬁcer, Barclays
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The Issue: United States in Focus
The United States federal government, which controls immigration policy and enforcement, excludes LGBT families from the immigration system.1 Data issued by the Williams Institute shows that of the nearly 650,000 same-sex couples living in the U.S., 40,000 are binational or dual non-citizen couples — all of whom are excluded from immigration beneﬁts equal to heterosexual married couples.2 Unlike companies operating in many of America’s competitor nations, American companies face particular challenges in recruiting, retaining and developing LGBT talent. In countries that recognize LGBT families, a straightforward process exists for an LGBT national to sponsor the foreign spouse for residency. By contrast, in the U.S. even LGBT couples who marry in a state like New York or Massachusetts (where such unions are recognized) face separation or exile because they cannot access immigration beneﬁts.
“We don’t want to see our employees separated from their families. We want these skilled workers to be able to live here where they can help grow our businesses and expand our economy.” — Scott Corley, Executive Director, Compete America
The sole exception is that tourist visas are available to the same-sex partners of some foreign workers in the U.S., but without the rights and privileges available to straight couples. Same-sex Couples and Immigration in the United States by Craig J. Konnoth and Gary J. Gates. The Williams Institute.
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This discrimination adds to larger corporate frustration with difﬁculties in sourcing top talent, particularly in growth industries like science, technology, engineering and math (STEM). By 2018, it is estimated that the U.S. will face a projected shortfall of over 220,000 workers in STEM industries.3 Access to global talent is crucial for maintaining U.S. competitiveness in global markets. Updating our immigration system is an integral part of America’s national economic strategy.
“As part of a global organization, our people think and act globally while working seamlessly across geographic boundaries and industry sectors. All Ernst & Young member ﬁrms recognize the need to recruit and retain talent around the world without the constraints of discriminatory immigration and visa status.” — Karyn L. Twaronite, Americas Inclusiveness Ofﬁcer, Ernst & Young
Immigration discrimination against LGBT individuals results in lost recruits, forgone foreign assignments, suboptimal productivity and premature retirements, all of which cost companies money.
Not Coming to America: Why the U.S. is falling behind in the global race for talent.
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Know Before You Go: Comparison of Select Countries’ Immigration Laws for Same-Sex Couples
While numerous factors inﬂuence a company’s ability to attract top international talent, American companies face structural impediments that foreign competitors do not. More than 25 countries now offer residency for gay and lesbian partners. These countries include six of America’s top-ten trading partners, as well as 65% of OECD countries, some of America’s primary international competitors. A 2012 OOTS survey revealed that over 90% of LGBT respondents see the United States as a country in which they expect immigration problems, alongside many Middle Eastern, African and Asian countries.
Discriminatory United States* Do not recognize same-sex partners — married or Singapore unmarried — as dependents for immigration UAE Russia India Japan China France French nationals may establish a civil union which confers immigration beneﬁts for a foreign national partner; however, non-French nationals cannot immigrate to France with a same-sex partner Recognizes same-sex couples — married and unmarried — for immigration purposes The ﬁrst country in Latin America to recognize same-sex couples for immigration; recognizes married and unmarried couples Same-sex couples have the same immigration rights as opposite-sex couples, does not require marriage Same-sex couples have the same immigration rights as opposite-sex couples, does not require marriage. Same-sex marriage legal since 2005 Same-sex couples can enter into a registered life partnership which carries the same immigration rights as opposite-sex couples Same-sex couples have the same immigration rights as opposite-sex couples, does not require marriage. First country to legalize same-sex marriage, in 2001
*Limited-duration visas (e.g., B-2) are available for partners of foreign nationals. They are not available to permanent residents and U.S. citizens on certain visas.
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In a benchmarking survey conducted by the American Council on International Personnel (ACIP) with its member organizations,4 respondents shared stories of employees who had chosen to work in other countries as a direct result of discriminatory American immigration law. Europe and Australia were nominated as preferred transfer destinations for LGBT talent.
“Simple as that. We have had people choose to work in other countries — and for other employers — because the U.S. would not support the immigration of the life partner.” “We have both external new hires that we have missed out on due to this fact, but more importantly we have had internal transfers even at the executive level that we have not been able to proceed with, as the U.S. does not federally recognize same-sex partners or spouses. We have had much more success placing these employees in various EU countries or Australia.” — ACIP Survey Respondents
What Discrimination Looks Like
Every year, immigration discrimination impacts thousands of families, forcing them to make impossible choices between family, country and career. While each of their stories is unique, three common examples highlight the personal and business cost created by the exclusion of LGBT families.
The Recruit That Got Away
A leading U.S. tech company spends months recruiting a highly skilled microchip engineer from Ireland. Despite the offer of a generous beneﬁts package and competitive salary, the recruit learns that she cannot bring her partner with her. The company is frustrated that despite its best efforts, the recruit accepts a job with a competitor in a country where her relationship is recognized and her partner is eligible for immigration beneﬁts.
The Expensive Expat
A global ﬁnancial institution needs to retain a top New York–based executive whose same-sex partner cannot renew his visa. Fearing the damage the executive’s departure would have on ﬁrm performance, the company relocates the executive and his partner to the UK The relocation package is a direct bottom line cost to his employer, but preferable to losing a key executive.
ACIP member organizations have at least 500 employees and at least one international ofﬁce.
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The Unhappy Executive
A talented design executive at a leading apparel company is contemplating early retirement because her partner’s visa does not allow her to stay in the U.S. for more than six months at a time. The executive loves her job, but prolonged separation and the stress of worrying about her partner’s status hurts her productivity and career development. Ultimately she chooses peace of mind and leaves her job to build a life with her partner overseas.
The Cost of Discrimination
The exclusion of same-sex partners from immigration beneﬁts creates costly challenges for American businesses seeking to maximize productivity and recruit, retain and develop talent. In a global economy where America’s competitors are harnessing immigration as an integral part of their national economic strategies, the United States can no longer afford to bear these additional and unnecessary costs.
“Citi believes that all of our employees, including, among others, our gay, lesbian, bisexual and transgender colleagues, should be able to move across geographies, with their partners, spouses and families intact. Because this is not possible under current U.S. immigration law, Citi cannot fully leverage its global talent base, whose own career opportunities are potentially curtailed.” — Bob Annibale, Global Director, Citi Community Development and Microﬁnance
Foreign national LGBT employees recruited or transferred to the U.S. may not bring non-American partners with them on the same terms as heterosexual employees. The 2013 ACIP survey found that 42% of respondents reported missing out on a recruiting opportunity because a candidate was unable to bring a same-sex partner to the U.S. However, this ﬁgure does not capture the much larger number of LGBT talent who discount the U.S. as an employment destination altogether. As one ACIP survey respondent poignantly observed: “It’s a shame to think about all of those outstanding scientists out in the world who won’t even consider coming to the U.S. because they cannot bring their loved ones over with them.”
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As more and more countries recognize lesbian and gay partners and spouses for immigration, American businesses are losing their edge in recruiting top talent. U.S. interest in attracting educated, highly skilled immigrants is well-documented. Not only do immigrants have an impressive track record of starting businesses that innovate and create American jobs — Google, Intel, eBay, Yahoo!, among others — highly skilled immigrants help ﬁll critical skill shortages in the U.S. economy such as growth STEM industries.
“Economies grow faster when there is more innovation and having more smart people in the workforce is a key driver of innovation. And the quickest, cheapest way to get more smart people is to make it easy for them to move here.” — James Surowiecki, The New Yorker
LGBT employees who cannot sponsor their partner for immigration beneﬁts may request a transfer abroad or accept a competitor’s offer. U.S. businesses are losing human capital investments because of discriminatory federal immigration laws that are quite literally sending American talent and American jobs overseas. Every day, American workers are forced to take their talent abroad in order to be with their spouses and partners. The 2013 ACIP survey revealed that 10% of their member organization respondents have lost existing employees because of lack of recognition for LGBT families. Between investments in recruitment, training and the costs of searching for a replacement, it is estimated that the cost of replacing a valuable executive is equal to 400% of that person’s annual salary at the senior executive level, according to the Society for Human Resource Management.
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Developing Engaged Talent and Maximizing Productivity
Mobility and career advancement can be hampered by declined transfers and persistent family concerns. Global experience is a key component of career development in most multinational businesses, yet companies in the U.S. struggle to diminish the concerns and distractions of employees unable to keep their families together. Employees are burdened by elevated levels of anxiety and stress, they divert time to explore what limited avenues might exist to bring their partner to the U.S., they travel internationally frequently to see their partner and may take their full allotment of leave days to do so. They also expend time, money and energy on lawyer and visa fees. All of these factors reduce employees’ capacity to engage fully with their work and operate at maximum productivity. As an ACIP survey respondent pointed out, immigration challenges create “tremendous stress, frustration and confusion for otherwise easygoing, high-performing employees.”
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“Things we can ﬁx ourselves, we ﬁx internally. This is a problem we cannot ﬁx alone.” — Cisco Systems
Changes to immigration laws are needed in every country that currently denies LGBT families equal immigration rights. Only this will provide companies full access to global talent and an end to devastating decisions for so many LGBT employees. In the case of the United States, there are both judicial and legislative pathways to achieving a systemic solution to immigration discrimination. Through the judicial path, the Supreme Court can open federal beneﬁts — including immigration — to LGBT families by repealing the Defense of Marriage Act (DOMA). Through the legislative pathway, The United States Congress can pass immigration reform that includes the text of a bill called the Uniting American Families Act (UAFA). Judicial path: In March 2013, the U.S. Supreme Court will hear a constitutional challenge to DOMA, which limits the federal government to recognizing only marriages between one man and one woman. DOMA thus excludes legally married same-sex couples from any federal law or program in which marriage is a factor, including spousal immigration beneﬁts. If the Supreme Court strikes down DOMA, LGBT Americans may be able to sponsor their foreign partners for immigration beneﬁts soon thereafter. A ruling on DOMA is expected in June 2013. Legislative path: The Uniting American Families Act is a bill pending in both the House and Senate that addresses the impasse created by DOMA by instituting a new category of relationship called “permanent partnership.” UAFA would allow Americans to sponsor their permanent partners for residency, provided they can prove the bona-ﬁdes of their relationship. The legislation may be passed either on its own or as part of an immigration reform package. It does not redeﬁne marriage and it would not repeal DOMA. While LGBT families continue to be legally discriminated against, companies can play a crucial role in improving the lives of their employees through external advocacy and internal work-arounds.
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What Companies Can Do
”If you are trying to change something — governments can exert diplomatic power, NGOs can martial facts and arguments — but corporations martial economic power. That is something even the most passive of countries will listen to.” — Harry Gaskell, Managing Partner of Advisory Practice, Ernst & Young
While Fortune 500 companies have shown crucial leadership — in many cases ahead of governments — on equitable treatment of LGBT individuals, the inability of LGBT employees to access immigration beneﬁts is something companies cannot ﬁx alone. Legislators need to hear that businesses care about LGBT immigration — not just as a matter of fairness, but of competitiveness. American businesses should advocate on behalf of their LGBT employees — and indeed LGBT individuals across the country — by supporting a permanent solution for all LGBT immigrant families. They should also consider internal policies and programs that provide interim relief while discriminatory laws remain on the books.
“As a businessman, I support the passage of the Uniting American Families Act to preserve American ingenuity and productivity by keeping our employees and their loved ones here at home. As a gay man, I support the passage of the Uniting American Families Act so I can marry the man I love in the country I love.” — Executive at a global management consulting ﬁrm
Companies are increasingly speaking out in support of changes in law that would materially beneﬁt their employees and their business. According to the Human Rights Campaign’s Corporate Equality Index, in 2012 a record 74 companies publicly supported pro-equality legislation at the state or federal level. By most accounts, corporate support has helped secure pro-equality changes such as same-sex marriage initiatives in Washington and New York. What’s more, employees view these public shows of support positively. A majority of respondents in a national survey conducted by Bain & Company5 said it would make them feel more proud as an employee if their employer took a public stance on pro-LGBT equality legislation.
Bain & Company contracted PollBuzzer™, a real-time consumer opinion survey platform. Responses were ﬁltered to target those working at for-proﬁt institutions in the United States.
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In 2012, a record 74 companies publicly supported pro-equality legislation. of employees would feel more proud if their employer were to take a public stance on pro-LGBT equality legislation.
External advocacy can take many forms. Below are several options companies can consider to advance a permanent solution for LGBT employees and their families. Op-Eds/Open Letters: These statements and articles state a company’s public support for an issue. Because they are most often written by senior executives within the organization — including the CEO — statements raise awareness of the issue overall and help to carve out a “safe space” which makes it easier for legislators to vote afﬁrmatively. Coalitions: Coalitions allow companies who are ready to have a more direct effect on speciﬁc legislation to band together and leverage their collective power and voice. Power of Coalitions: The Business Coalition for the Uniting American Families Act: Builds and organizes corporate support for LGBT-inclusive immigration reform. Coalition member companies visit with lawmakers in Washington, D.C. to share stories of employees who have retired early, passed up career advancement and required costly transfers simply to keep their families together. Lawmakers on both sides of the aisle are listening to what companies say about LGBT rights and are using the business case as reason to support UAFA. In the 112th Congress, 145 House members and 30 Senators from both parties cosponsored UAFA.
”We have joined Immigration Equality’s Business Coalition to support passage of the Uniting American Families Act because the issue of equality for LGBT families under U.S. immigration laws is important to many of our associates and to Marriott as a global employer.” — Debbie Marriott Harrison, Senior Vice President, Government Affairs, Marriott International, Inc.
Direct Lobbying: Corporations employ lobbyists to help pass business-related legislation by creating relationships with legislators. Adding or prioritizing LGBT-supportive bills to a lobbyist’s portfolio is an effective way of educating lawmakers on the business case for change.
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Corporate support for pro-equality legislation isn’t just the “right thing to do.” It makes good business sense. More and more, executives are encouraging lawmakers to pass pro-business, pro-equality measures into law that improve the business climate for recruiting and retaining LGBT talent and increase global competitiveness. Corporate Support for LGBT Equality Legislation State: Passing marriage equality. Marriage initiatives in Maine, Maryland, New York and Washington succeeded with the help of local companies. An open letter to the New York legislature signed by 27 CEOs was a watershed moment in that state’s marriage equality campaign. Led by Goldman Sachs CEO Lloyd Blankfein and hedge fund leader Paul Singer, the executives publicly and privately expressed support for legalizing same-sex marriage. They argued that marriage equality would makes New York a more attractive place for gay and straight employees to work and increase its competitive advantage against other states. National: Repealing DOMA. According to the 2013 Corporate Equality Index, 46 companies joined amicus briefs on litigation opposing DOMA, including ﬁve members of the Business Coalition for UAFA. International: Ending criminality of consensual homosexual acts. In 2012 Google launched its “Legalize Love” campaign around the world, to educate communities about LGBT rights and inclusion in places where it is illegal to be gay, or where there are other anti-gay laws or where the culture is homophobic. Google intends to work with local groups to lobby governments to this end. Google’s head of diversity, Mark Palmer-Edgecumbe, identiﬁed Singapore as a key focus in this early stage of the campaign: “Singapore wants to be a global ﬁnancial center and world leader and we can push them on the fact that being a global center and a world leader means you have to treat all people the same, irrespective of their sexual orientation.”
While companies cannot solve LGBT employees’ immigration challenges on their own, they can support employees facing challenges in global mobility. For example, few companies have speciﬁc protocols in place for ensuring the safety of LGBT employees and their families who are relocated to countries where local attitudes and laws make safety a matter of concern.
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As a recent Stonewall UK report suggests, the best employers craft policies that explicitly call out the additional considerations for LGBT staff pursuing a foreign assignment. Though there are limitations to what a company can do within certain jurisdictions, they can set clear, widely understood policies to open up opportunities for LGBT employees and set expectations for how employees will be supported. For example, when a same-sex partner cannot accompany an employee on assignment, frequent travel allowance back to a home country can mitigate the hardship of separation. Companies can also institute policies whereby management is knowledgeable about restrictions and dangers facing gay families and ensure that a declined transfer resulting from reasonable concern does not hamper career progression. They can even go so far as to hire the partner of a key employee, where appropriate, on their own work visa.
What Companies Stand to Gain from Change
American companies win when LGBT families are included in U.S. immigration laws. With LGBT employees able to make decisions on the basis of what is best for their career, their family and their employer, companies will have better control over who and where they hire and how they manage, assess and reward employees.
Workforce Planning and Flexibility
Hire the right candidate for the right role Move employees between ofﬁces more freely
End premature retirement and loss of employees to competitors Allow employees to plan a secure future
Development and Productivity
Develop employees through assignments in the U.S. Limit personal stress that distracts from job duties End needless transfers to foreign ofﬁces
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Thinking Outside the Closet is a white paper series developed and created by Out on the Street™. Out on the Street Mission As the ﬁrst LGBT leadership organization for Wall Street, by Wall Street, the mission of Out on the Street is to engage both gay and straight senior leaders in discussions around making the Street a destination for top talent and to enhance the careers of LGBT senior leaders by creating connections to increase opportunities for business. For more information please contact: firstname.lastname@example.org
© 2013 Out on the Street. All rights reserved. All trademarks are the property of their respective owners.
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