Features | June 01, 2021
Protecting LGBTQ+ Employees: What Employers Should Know
Federal and, in some instances, state and local law protects several groups of people in the workplace based on their sexual or gender identity. Given the newness of these protections, as well as the diversity of characteristics and people within this group, some employers are finding it difficult to know how to react to and accommodate the needs of this group.
LGBTQ+ stands for Lesbian, Gay, Bisexual, Transgender, and Queer, with the “+” representing the numerous other sexualities and gender identities covered by this broad term. While employers are not required to know all of the terms, they are required to be accepting, treat an employee equally, and protect them from discrimination, harassment or retaliation.
DEI stands for diversity, equity and inclusion. It is a term that encapsulates the goals companies should have when creating policies, procedures and practices with respect to employees in any protected group (including race, national origin, age and/or LGBTQ+). While descriptions vary slightly from source to source, common definitions include (as found at DEI Expert Hub):
Diversity: Having different types of people from a wide range of identities with different perspectives, experiences, etc.
Inclusion: Putting diversity into action by creating an environment of involvement, respect, and connection, where the richness of ideas, backgrounds and perspectives are harnessed to create value
Equity: Removing the predictability of success or failure that currently correlates with any social or cultural factor, examining biases and creating inclusive environments.
The Basics: Legal Protection
On June 15, 2020, the U.S. Supreme Court issued a landmark 6-3 decision that includes sexual orientation, including LGBTQ+ employees, as protected under Title VII. This means that terminating or taking other negative employment actions against an LGTBQ+ employee based on their sexual or gender identity constitutes sex discrimination and therefore is against the law.
While several states, counties and cities had these protections prior to the ruling, the U.S. Supreme Court’s decision makes it the law for every employer who falls under Title VII of the Civil Rights Act (which applies to most employers).
In response to the U.S. Supreme Court’s decision, the minimum action all employers should take is to:
- Review and revise their non-discrimination, harassment, sexual harassment and non-retaliation policies to include protections for LGBTQ+ groups relating to sexual orientation, gender expression and transitioning status.
- Update other policies which may be impacted (directly or indirectly) by sex and gender stereotypes, such as dress code, benefit coverage, job requirements and leave entitlement.
- Ensure all policies and procedures are applied equally to both sexes without regard to sexual orientation, gender identity or transgender status.
- Train all managers and employees that any and all discrimination, harassment, sexual harassment and retaliation violates the law and therefore company policy, including the newly-protected groups.
- Enforce all policies fairly and discipline any employee, manager, client or vendor who discriminates, intentionally or unintentionally, against an employee in a group protected under Title VII or any other law such as ADA, ADEA, USERRA and IRCA.
We encourage our clients to go further than simply “following the law.” According to research, fostering DEI within the workplace has been found to increase company cash flow by 2.3 times and revenue by 19%, and team performance increases by 30%. Additional research shows that employees in an inclusive organization have higher job satisfaction, lower turnover, higher productivity, higher employee morale, improved creativity and innovation, improved problem solving, increased organizational flexibility and all-around better quality of work life. By hiring, training and promoting employees to be active participants in policy and decision-making, employers have ready access to various perspectives, ideas and experiences to strengthen their business practices.
Find reliable resources such as the National Center of Transgender Equality to learn what the LGBTQ+ statuses mean and what LGBTQ+ individuals go through. While every LGBTQ+ person is different, this research will help you examine your policies, practices and procedures for places of improvement in preparation for an employee asking for accommodation.
Some accomoadtions may include:
- Use the name they prefer, even if different than what is on their documentation.
- Use their preferred pronouns, which could be he/him/his, she/her/hers or they/them/theirs, or perhaps no pronouns at all.
- Offer assistance when a person is transitioning into the gender they identify with from the one of their birth. This may be (but is not limited to) offering a private bathroom or updating their email address.
- Allow flexibility in your dress code to allow individuals to wear clothing according to their preference rather than their gender identity or gender of their birth.
- Extend that flexibility to your personal appearance policy with regards to hair styles, makeup, behavior, voice or body characteristics.
You should be understanding and respectful, asking for their guidance and help along the way. Your goal should be to learn to make a better workplace for them and everyone else. Remember, it is not the responsibility of the LGBTQ+ community to teach you — it is your responsibility to learn.
Some critical don'ts include:
- Do not assume anything and do not treat all LGBTQ+ employees the same. Let each LGBTQ+ employee ask and explain, then come up with a plan together.
- Do not allow other employees to gossip or treat LGBTQ+ employees differently or exclude them from workplace interactions.
- Do not allow managers to overlook LGBTQ+ employees when it comes to advancement, training and salary increases. Performance should be evaluated fairly and consistently based on essential job-based aspects, not preferences or stereotypes.
- Do not allow third parties such as clients and vendors harass or discriminate against your LGBTQ+ employees. As with other protected groups, you are responsible to protect employees from harassment, discrimination or sexual harassment from anyone, even nonemployees.
By actively creating more opportunities and fostering a productive environment for LGBTQ+ employees, you will reap tangible benefits. Being open to the possibilities will allow you to discover new ways to grow your business and keep your best employees.
Paige McAllister, SPHR, SHRM-SCP, is a contributor for Affinity HR Group, Inc., PSDA’s affiliated human resources partner, and the vice president for Compliance at Affinity HR Group. Affinity HR Group specializes in providing human resources assistance to associations such as PSDA and their member companies. To learn more, visit www.affinityHRgroup.com.
If you have any questions about how to navigate the LGBTQ+ landscape or how to respond to an employee’s request, reach out to Affinity HR Group. Visit our website to learn more, email us at contact@AffinityHRGroup.com or call 877-660-6400.
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