Diversity Is No Longer as Black and White as It Once Was

By Kwabena A. Appenteng and Larry D. Robertson Feb 22, 2016
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During a recent diversity seminar, we participated in a breakout session to discuss diversity issues that disproportionally impact black men. To the organizers of the seminar, the two of us appear part of the same diversity “group” since we are both black, we are both male and we appear to be close in age. But beneath the visual similarities lies a key difference: our sexual orientation. One of us identifies as gay. The other identifies as straight.

It is easy for employers to ignore key differences among employees who might share a few visual traits. Indeed, for many years employers have viewed diversity through the lens of Title VII of the Civil Rights Act of 1964, the central federal employment discrimination law. Title VII makes it illegal for employers to discriminate against employees on the basis of sex, race, color, national origin and religion. If an employer has discriminated against an employee in one of these protected classes, a court may order the employer to pay damages to the employee, reinstate the employee, undergo mandatory workplace training and formally alter its workplace practices.

As a result, many employers narrowly focus on ridding their workplaces of discrimination based on a set of visual cues—for example, the employee is black, female or wears religious garments to work. But if the employer is committed to maintaining a diverse workplace, this analysis is no longer enough.

New Protections

Over the past year, administrative agencies, Congress and even the White House have adopted or proposed rules and legislation mandating that employers make their workplaces inclusive of lesbian, gay, bisexual and transgender (LGBT) employees. In December 2014, the U.S. Department of Labor issued a rule prohibiting federal contractors from discriminating against employees on the bases of sexual orientation and gender identity. 

In June 2015, the Occupational Safety and Health Administration issued guidance advising employers to allow workers to use restroom facilities that correspond with their gender identity, and to do so without providing medical or legal documentation of the employee’s gender identity. The guidance also advises that no employee should be required to use a segregated restroom facility because of his or her gender identity.

In addition, 21 states, the District of Columbia and Puerto Rico have enacted laws that protect LGBT employees, and another 250 cities and counties have adopted ordinances that bar employment discrimination based on sexual orientation or gender identity.

But perhaps the most significant piece of legislation is not yet law. The recently proposed Equality Act, currently pending in the Senate and House, would amend Title VII to make it illegal for employers with 15 or more employees to discriminate against employees on the bases of sexual orientation and gender identity. Under the Equality Act, the term “sex” would include sex stereotypes, sexual orientation and gender identity; the term “sexual orientation” would include homosexuality, heterosexuality and bisexuality; and the term “gender identity” would include gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth. The act’s national coverage would serve to blunt variations among the states in protecting LGBT employees from workplace discrimination. 

Recent Legal Decisions

Against the backdrop of this proposed legislation, the Equal Employment Opportunity Commission (EEOC) has interpreted Title VII to protect workers from employment discrimination on the bases of sexual orientation and gender identity. In April 2015, the EEOC ruled that the U.S. Army violated Title VII when it prevented a transgender veteran from using the women’s restroom until she had undergone “final surgery” to complete her gender transition process.  Then, in July 2015, the EEOC ruled that discrimination against an individual because of his or her sexual orientation is sex discrimination under Title VII.

The EEOC also has sued employers in federal court when it perceived that employees suffered discrimination on the bases of their sexual orientation or gender identity. For instance, in the summer of 2015, the EEOC sued an employer in Minnesota federal court, alleging that the employer denied a transgender woman access to the women’s restroom, subjected her to offensive epithets and deliberately referred to her with the wrong pronoun.
The employer agreed to a three-year consent decree which required that it pay $115,000 in back pay, compensatory damages and attorney fees.

In the spring of 2015, the EEOC settled a case in which it alleged that an employer violated Title VII by firing an employee because she was transitioning from male to female, and began to present as a woman at work. The settlement required the employer to enter into a two-year consent decree and pay $150,000 in monetary damages. 

Significantly, courts have been unwilling to uphold religious discrimination claims when employees have attributed their anti-LGBT remarks to their religious views. Most recently, a California employer prevailed against an employee who claimed her termination resulted from religious discrimination. The employer fired her after she made discriminatory remarks about a volunteer intern who identified as lesbian, including that the intern “won’t be going to heaven … because God does not like gays”; that her superiors were “cultivating a gay environment”; and that “God made Adam and Eve, not Adam and Steve.”

Employer Takeaways

Given the plethora of legislation, agency guidance and decisions, and court rulings, employers may wish to consider the following recommendations: 

  • Provide sensitivity training to your entire workforce.
  • Review your policies to ensure they are consistent with current federal, state and local nondiscrimination provisions.
  • Implement a gender transition policy.
  • Make every effort to refer to applicants and new employees by their preferred name and pronoun.
  • Allow a transitioning employee to use his or her preferred name.
  • Permit employees to use the restroom or locker room that corresponds with their gender identity. 

Kwabena A. Appenteng and Larry D. Robertson are associates in the Chicago office of Littler.  

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