Q: What is a certification mark?

As defined by the U.S. Patent & Trademark Office, a certification mark is “any word, name, symbol, device, or any combination, used, or intended to be used, in commerce by someone other than its owner, to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person's goods or services, or that the work or labor on the goods or services was performed by members of a union or other organization.” See www.uspto.gov. In the case of the Fair Employment Mark, the certification mark is a symbol companies or individuals can use to certify that they produce their goods or provide their services without discriminating in employment on the basis of sexual orientation. On April 17, 2007, the Fair Employment Mark was registered as a certification mark by the United States Patent and Trademark Office (Reg. No. 3,230,946).

Q: Why should I use the mark?

Using the mark will send a signal to gay and gay-supportive employees and consumers (both current and potential) that your organization is committed to equality. This may attract customers to your product or service. It may also help you to recruit talented employees who value nondiscrimination. Using the mark also sets a positive example to other organizations poised to adopt nondiscrimination policies for their employees. If your organization already has policies that prohibit discrimination on the basis of sexual orientation, the mark does not represent a substantive change in your employment policy; it merely formalizes and publicizes your organization’s commitment to this basic civil right.

Q: How will the Fair Employment Mark be enforced?

The most obvious group of private enforcers of those requirements would be the people who are supposed to get the greatest benefit: gay, lesbian and bisexual people who work for companies adopting the mark. The certification license expressly empowers this group by naming a licensee’s employees and applicants as third party beneficiaries and clothing them with the same rights they would have under ENDA:

The Licensee and Licensor intend that these third-party beneficiaries will have the right to sue the Licensee for any breach of this agreement and have a legal right to the same remedies (including damages and injunctive relief) to which they would be entitled if ENDA was in effect.

Thus, the Fair Employment license mimics not just the substance but also the procedures of the proposed ENDA statute. These third party beneficiaries would be entitled to sue for compensation (back pay or benefits) or injunctive relief (reinstatement or promotion) that would be available under the statute.

Q: Do I open myself to additional liability if I use the mark?

If you treat employees differently on the basis of sexual orientation, then you would be subject to suit for breach of the fair employment licensing agreement. The employee you have treated differently on this basis would have standing to sue you as a third party beneficiary of the agreement you’ve made. Whether or not using the mark will expand an employer’s pre-existing scope of potential liability must be assessed on a case-by-case basis. You might be in a state that has independently passed fair employment legislation that covers sexual orientation, in which case the mark carries no additional responsibilities. You might also be bound to these non-discriminatory policies through your employee handbook. The above issues aside, we must be clear about what the mark does not require. Displaying this mark will not grant employees the right to challenge facially neutral policies that disproportionately effect gay or lesbian employees (i.e., no disparate impact rights). Displaying the mark does not require any “affirmative action” policies. Displaying the mark does not mandate that unmarried same-sex partners be granted spousal benefits. The mark simply demonstrates your commitment to eliminating discrimination in employment based on sexual orientation—and nothing more.

Q: What is the Employment Non-Discrimination Act?

The Employment Nondiscrimination Act (ENDA)is a bill that has been proposed repeatedly since 1993 but not yet enacted by Congress. ENDA would, in effect, include sexual orientation in the group of characteristics that Title VII already makes off limits as the basis for the terms and conditions of employment. More specifically, ENDA would forbid employers from discriminating on the basis of sexual orientation with regard to hiring, firing, and terms of employment; forbid retaliatory conduct; and be enforced by the Equal Employment Opportunity Commission. ENDA would adopt the basic disparate treatment framework developed under Title VII, but would exclude religious organizations and the military from its coverage. It would not allow disparate impact claims or affirmative action, and would not require the provision of employee benefits to domestic partners. When ENDA is adopted, equal employment opportunity—without regard to sexual orientation—will become the law of the land. There is already substantial support for the goals of ENDA. In a 2003 Gallup poll, eighty-eight percent of respondents said that “homosexuals should . . . have equal rights in terms of job opportunities." Dozens of corporations (including AT&T, Coors, and Quaker Oats) have already officially endorsed the passage of ENDA.

Q: Is there any charge for using the mark?

There is no charge for using the mark. Simply register and complete the licensing agreement and you can begin using the mark.

Q: If I register to use the mark, am I obligated to use the mark on all goods I produce and services I provide?

No. As the product manufacturer or service provider, you retain full discretion about where, when, and how to display the Fair Employment mark. You can use it on one of your products or all of them; display it prominently on the front of the packaging or tuck it discreetly on the back. You might want to use it at your web site but not on the product itself. What is most important is not how the mark is used, but rather that you’ve signed on to help end discrimination in the workplace.

Q: Where can I learn more about the mark or other equal employment issues?

To learn more, please read Straightforward: How to Mobilize Heterosexual Support for Gay Rights and visit the Related Links section of this webpage.

Q: Can I change my mind and terminate the licensing agreement?

Yes. A licensee can terminate the mark at any time.

Q: Does licensing the mark mean that I have to engage in affirmative action for gay or lesbian workers?

No. Displaying the mark does not require any "affirmative action" policies.

Q: Does licensing the mark mean that I would have to give benefits to unmarried same-sex partners?

No. Displaying the mark does not mandate that unmarried same-sex partners be granted spousal benefits.

Q: How soon does an employee or applicant have to file a claim of discrimination?

As with ENDA, claims of discrimination have to be made within 180 days of the alleged act.

Q: Does the licensor have the right to sue for alleged acts of discrimination?

No. Only third-party beneficiaries have a right to sue to enforce the licensee's promise not to discriminate. A licensee does not have to worry that we will be over-zealous in investigating or litigating.