Creating LGBTQ-Inclusive Workplace Policies



When it comes to employment protections for lesbian, gay, bisexual, transgender and queer (LGBTQ) workers, dealing with the hodgepodge of state and local laws and conflicting interpretations of federal law can be daunting for employees and employers alike. To ease confusion and provide clarity, businesses should consider adopting the most inclusive policies, employment law attorneys said.

"If the employer wishes to avoid the headache of enforcing a patchwork of policies, and if it makes sense for business operations, I usually suggest compliance with the state that has the most protective laws across all operations," said Jaklyn Wrigley, an attorney with Fisher Phillips in Gulfport, Miss.

Some employers have elected to expressly include sexual orientation, gender identity and gender expression as protected characteristics in their equal-employment-opportunity, anti-harassment and other policies, even though federal law does not cover all these bases, said Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix. And while some states do cover them, others don't.

Employers should note that, under a 2014 executive order, federal contractors are prohibited from discriminating against workers and job applicants based on sexual orientation or gender identity. 

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

But even if an employee is in a jurisdiction that protects LGBTQ workers, a company's culture may prohibit employees from bringing their whole selves to work, noted Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.

Forty-six percent of respondents to a 2018 Human Rights Campaign survey said they are not open at work about their LGBTQ status. This speaks to a company's climate, which can be shaped by its policies and practices, Phillips said.

Employers don't want workers to worry about being bullied or socially viewed as outcasts, she noted. So as a best practice, she said, businesses should include sexual orientation, gender identity and gender expression in their anti-harassment policies and harassment-prevention training.

Federal Inconsistencies

Sexual orientation is not a protected category under Title VII of the Civil Rights Act of 1964—the primary federal workplace anti-discrimination statute. Although lawmakers have introduced bills to prohibit such discrimination, legislative efforts have been unsuccessful so far, Wrigley said.

LGBTQ employees, however, have pursued other outlets to address discrimination in the workplace, she noted. Most commonly, they have filed lawsuits arguing that sexual-orientation discrimination is actually gender or sex discrimination—which is protected under Title VII.

There is almost uniform recognition that Title VII protects LGBTQ individuals from sex stereotyping and same-sex harassment, Shivers said, noting that the following conduct may be considered unlawful sex stereotyping:

• Firing a male employee because of his effeminate mannerisms.
  
• Declining to promote a female employee because she doesn't wear makeup or doesn't have the "feminine image" that the employer desires.
  

Even though the employees in these scenarios might be covered under Title VII's protection from sex discrimination, case law in this area is still evolving and federal appellate courts disagree as to whether sexual orientation or gender identity falls under Title VII's purview. 

President Barack Obama's administration pushed to expand Title VII protections. In 2014, former Attorney General Eric Holder issued a memorandum announcing that the Department of Justice (DOJ) would consider adverse employment actions against transgender workers to be in violation of federal civil rights laws. However, in 2017, President Donald Trump's former attorney general, Jeff Sessions, reversed the DOJ's position.

The Equal Employment Opportunity Commission (EEOC) still takes the position that Title VII covers discrimination based on gender identity and sexual orientation. So EEOC guidance is now at odds with the current administration's stance, which has led to conflicts between the DOJ and EEOC in recent lawsuits, Shivers said.

"Ultimately, Congress or the U.S. Supreme Court will have to take action if employers are ever to receive a clear message—at least as federal law is concerned," Wrigley said.

State-Law Patchwork

Currently, 21 states and Washington, D.C., prohibit employment discrimination based on both sexual orientation and gender identity.

A number of cities and counties have also banned employment discrimination based on LGBTQ status, even if their state has not. "You really have to look at it by locality," Phillips said.

Some states have created protections only for public employees. Other states and localities prohibit discrimination based on sexual orientation, gender identity or gender expression—but not all three.

It's critical for employers to understand that these are distinct concepts with unique meanings, Shivers said. For instance, gender expression should not be conflated with sexual orientation. The Human Rights Commission provides the following definitions:

• Sexual orientation: An inherent or immutable enduring emotional, romantic or sexual attraction to other people.
  
• Gender identity: A person's innermost concept of self as male, female, a blend of both or neither.
  
• Gender expression: A person's external appearance of gender identity, usually expressed through behavior, clothing, haircut or voice, and which may or may not conform to socially defined behaviors typically associated with being either masculine or feminine.
  

Workplace Best Practices

There are numerous ways employers can be inclusive and compliant, Shivers said. Proactive steps to prevent discrimination against LGBTQ individuals include:

• Modernizing harassment-prevention training with realistic and representative scenarios, including those reflecting LGBTQ issues.
  
• Developing gender-transition resources for employees.
  
• Creating inclusive policies reflecting current nomenclature.
  
• Including LGBTQ demographics in diversity and inclusion data.
  
• Asking senior leaders to sponsor and support LGBTQ organizations.
  

Anti-discrimination policies should include detailed—but easy-to-follow—reporting procedures, Wrigley said.

"Policies are ineffective if employees are unaware that they exist," she added. "So an employer's next step must be to make sure the policy is communicated to all employees in a regular and conspicuous way."

Employers may accomplish this by requiring employees to acknowledge that they received and understand the policy and by posting information about the policy in a break room.

"Employers need to be proactive," Phillips said. When they learn about potential harassment and discrimination, they should take prompt and remedial action and send the message to staff that such conduct won't be tolerated.