The 2018 midterm election was historic for individuals identifying as lesbian, gay, bisexual or transgender (LGBT). With significant victories on the state and local level, LGBT individuals are making inroads as shown by Colorado electing Jared Polis as the nation’s first openly gay governor and Kyrsten Sinema making history not only as Arizona’s first female senator, but the first-ever bisexual member of the US Senate.
Additionally, Massachusetts voters upheld a state law prohibiting discrimination based on transgender status in places of public accommodation via the first statewide referendum of its kind.
However, against this backdrop, the Trump administration has rolled back LGBT protections by arguing that Title VII of the Civil Rights Act does not protect sexual orientation or gender identity, rescinding bias protections and aiming to protect religious liberty at the expense of LGBT rights.
This has been met with stern opposition by the business community. In fact, 56 major corporations have banded together in a Business Statement for Transgender Equality, opposing any administrative and legislative efforts to erase transgender protections through the reinterpretation of existing laws and regulations.
In doing so, business leaders noted that diversity and inclusion positively impacts an employer’s bottom line and increases productivity. Many have put those words into practice as more than 80% of Fortune 500 corporations have clear gender identity protections, two-thirds have transgender healthcare coverage and hundreds more have LGBT employee resource groups and diversity training programs.
What this boils down to is that having workplace policies prohibiting discrimination, harassment and retaliation based on gender identity and sexual orientation is not only best practice, but it is good business sense. Here are eight measures an employer can take to ensure a workplace that is diverse, tolerant and respectful of all individuals including those who identify as LGBT.
1. Avoid Discrimination in Hiring
An employer must avoid discrimination during the recruiting and hiring process and make clear from the outset that it supports equality. Mixed messages may affect the employer’s bottom line and make it more difficult to attract the best talent.
Job titles, job descriptions and advertisements should be neutral and free of bias. Also, discriminatory questions on job applications and interviews should be avoided, and you should steer clear of questions which may lead to the disclosure of private information, such as asking about marital status or a spouse’s name. If an employer discovers that a candidate identifies as LGBT, it should keep these personal details private and confidential.
2. Provide Training
In order to achieve and maintain a diverse and inclusive workplace, it is essential to provide training to all employees and supervisors. The training should focus on not only the employer’s antidiscrimination, harassment and retaliation policies with respect to sexual orientation and gender identity, but also on diversity and sensitivity training.
Employees and supervisors should be trained to avoid the use of stereotypes and slurs as well as refrain from using offensive language and jokes. It should be understood that the employer takes discrimination, harassment, retaliation and bullying of any kind against LGBT individuals seriously and the employer will not hesitate to investigate complaints and impose discipline if warranted.
3. Handle Restroom Issues with Care
An employer must be particularly careful when it comes to restrooms, locker rooms and other public facilities. All employees and third parties should be allowed to use the facility corresponding with their current gender identity regardless of the individual’s sex at birth.
Organizations may want to consider single-occupant gender neutral restrooms to provide increased privacy and comfort. Otherwise, an employer should consider installing additional privacy measure such as dividers and stall doors. If another employee is uncomfortable with an LGBT individual using a specific restroom, that employee should be allowed to use another facility.
4. Support Individuals Who Are Transitioning
It is critical to provide support and assistance to transgender individuals who are transitioning, and it is important that all issues are handled with the utmost privacy and sensitivity. The employer or HR should work closely with the individual to discuss how the following will be handled, including:
• The employee’s name change and the proper pronouns to use;
• Changing the employee’s records;
• The use of restrooms and locker rooms;
• Dress code compliance;
• Time off for surgery/treatment and doctor and therapist appointments; and
• Confidentiality and privacy issues.
HR and any supervisors with knowledge of the transition should work to keep the lines of communication open and display patience, respect and compassion while an individual deals with this personal, confidential and sensitive matter.
5. Engage in the Interactive Process Regarding Accommodations
Your organization should make clear that it will be receptive to providing workplace accommodations based on sexual orientation or gender identity if doing so would not create an undue hardship. Accommodations may include changes to dress or grooming codes, policies regarding hairstyles and makeup, employee name changes, and the use of restrooms and locker rooms.
It is essential to train supervisors to properly address such accommodation requests and engage in the interactive process with employees who request such accommodations.
6. Consider LGBT Employee Resource Groups
Employee resource groups or affinity groups geared toward LGBT individuals can help by providing an arena to share experiences and workplace challenges. Such measures can play a substantial role in increasing employee engagement, morale and retention and also creating a sense of community.
7. Review Benefits Packages
When providing benefits, it is important to make sure there are no gender-based exclusions and that the benefits package does not discriminate based on sex, sexual orientation or gender identity.
Same sex spouses or partners should be provided with equal benefits when it comes to health benefits, sick time, bereavement leave, FMLA and other leaves of absence. Family and medical leave policies should therefore include same-sex partners, adopted children and foster children when defining “family members.” Additionally, an employer may want to consider coverage for trans-medical care including surgeries, health care and supportive therapy.
8. Address Uncomfortable Co-Workers
An employer must be forthright and directly address any voiced concerns or complaints of uncomfortable co-workers with regard to LGBT individuals. Otherwise, such issues may escalate and increase the rise of harassment or hostile work environment claims.
While an employer may have a duty to accommodate religious beliefs and practices, it must never do so at the expense of another employee or in a way that results in discrimination. EEOC guidance provides that “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.”
Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.” While an employer should be extremely sensitive to co-worker concerns, it should not favor the uncomfortable co-worker at the expense of an LGBT employee.