Do Ask, Do Tell?

Companies divided on whether to ask about workers’ sexual orientation

By Dana Wilkie Mar 14, 2016

Some employment experts think it’s a good idea for companies to ask workers if they want to identify as lesbian, gay, bisexual or transgender (LGBT). HR offices can then tailor benefits to LGBT employees and ensure that workplaces fully represent that community.

But others think it’s not such a hot idea. 

“Even if a company takes proper precautions to ensure confidentiality and anonymity… a rogue manager or group of employees may take adverse actions against the LGBT employees, and those employees would not be able to take legal action in those states where there are no LGBT-based protections,” said Michelle Phillips, a lawyer with Jackson Lewis in White Plains, N.Y., who advises companies on employment law.

It’s legal in 28 states, from Montana to Virginia, to discriminate against anyone who isn’t heterosexual, and more than 76 countries consider homosexuality a crime. 

Companies on Board

JPMorgan Chase & Co.’s HR department is asking employees this year, for the first time, if they want to disclose their sexual orientation or gender identity, according to a recent Bloomberg News article. Companies including Facebook Inc., Deutsche Bank AG, IBM Corp. and AT&T Inc. also collect the data. The article explained that to better compete for talent, nearly half of the largest U.S. businesses gather information about which workers are LGBT so HR can create more-inclusive benefits plans and managers can consider LGBT diversity in their promotion decisions.

On the other hand, Chevron Corp. decided not to pose the question after a review identified data security risks, according to the Bloomberg article.. American Express Co.—among others—asks questions about sexual orientation and gender identity only in countries where LGBT status is legal. 

Phillips acknowledged that the U.S. Equal Employment Opportunity Commission (EEOC) has aggressively pursued LGBT discrimination cases in federal courts and has ruled in its own cases that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. 

However, she said, “despite this federal movement, the majority of states do not prohibit discrimination against LGBT employees.

“This is particularly problematic when LGBT employees are transferred to those states in which there are no LGBT protections or to countries outside the U.S. which also don’t protect the rights of LGBT workers,” Phillips noted.

However, Christy Mallory, Anna M. Curren Fellow and senior counsel at the UCLA School of Law’s Williams Institute, doesn’t believe this is an issue—at least not in the U.S. Because some courts and the EEOC have interpreted Title VII’s prohibition on sex discrimination to also prohibit sexual orientation and gender identity discrimination, “then even in states without explicit protections at the state level, employees do have protections at the federal level.

“This means that no matter where a worker is employed, the EEOC will accept complaints of sexual orientation and gender identity discrimination as forms of sex discrimination,” she said.

Benefits, Promotions, Development

Gary Gates, a retired demographer from the Williams Institute, said employers may ask about sexual orientation so they can design better or more-alluring benefits plans. Among the benefits that HR offices can tailor to their LGBT workers:

  • Access to, and equal treatment of same-sex partners in, retirement and pension programs.
  • Access to fertility planning and reproductive technology services for same-sex couples.
  • Equal treatment of same-sex parents in parental- and family-leave policies.
  • Insurance for transgender surgeries.

Mallory added that another benefit important to same-sex couples is a policy allowing employees to take sick leave to care for a partner’s sick children.

“This would be particularly important for employees who have faced legal or financial barriers to adopting a partner’s child but provide regular parental care for the child,” she said. “While this policy would not just apply to LGBT people, it could have a greater impact on LGBT parents as they have historically faced more barriers to forming legal relationships with the children they’re raising than their different-sex counterparts.”

Beck Bailey, deputy director of employee engagement at the Human Rights Campaign, said data on LGBT workers can also be useful when gauging the work climate for LGBT employees, measuring the impact of LGBT initiatives—whether for hiring or identifying high-potential, diverse candidates for future leadership roles—and considering LGBT diversity in promotion decisions.

“Certainly as employers continue to spend money on LGBT diversity recruiting and development, self-ID provides a mechanism for tracking the impact of that spending and the ROI [return on investment] of these initiatives,” said Bailey, whose organization works to achieve LGBT equality.

When asking employees if they want to voluntarily identify as LGBT, Bailey said, it’s best to:

  • Introduce sexual orientation and gender identity questions only after a company has some experience in LGBT inclusion initiatives. “It's generally not successful as an early initiative,” he said.
  • Restate that it is against company policy to discriminate based on sexual orientation and gender identity. “This improves participation by highlighting and reassuring corporate commitment.”
  • Explain the reason for the question and how the data will be used. “This helps create buy-in and improves participation,” he said. “For example, if self-ID is used to help identify diverse populations for professional development opportunities, then knowing that will improve participation.”

Dana Wilkie is an online editor/manager for SHRM.

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