Ignorance About LGBTQ Issues=A Lawsuit Waiting to Happen

By Dana Wilkie October 29, 2015

BOSTON—Avoid questions about marital status. Confront contractors who refuse to hire LGBTQ employees. Don’t assume that a manager’s religious objections to LGBTQ employees trumps the latter’s right to a workplace free of discrimination.

Those are among the suggestions that Michael Cohen, a partner with the Duane Morris law firm in Philadelphia, gave for interviewing and managing LGBTQ applicants and employees during his presentation at the Society for Human Resource Management’s 2015 Diversity & Inclusion Conference & Exposition.

During his session on Oct. 27, Cohen offered advice for avoiding discrimination claims based on sexual orientation and gender identity.

“Organizations that are wildly successful—they get this stuff,” Cohen said. “They understand the importance of providing protections for LGBTQ employees.”

When it comes to legal protections for LGBTQ workers, Cohen said, it’s important to know that while federal law doesn’t explicitly provide protections, several state and local laws do, and the Equal Employment Opportunity Commission (EEOC) has made several determinations that workers were discriminated against based on their sexual orientation or gender identity.

“Federal courts throughout the country have and will allow [LGBTQ discrimination] claims to go forward under a sex-stereotyping or gender nonconformity theory,” Cohen said. “Which means … regardless of where you’re operating, there’s a very real risk of getting sued and losing a lawsuit.”

To avoid EEOC claims or lawsuits, Cohen offered these tips:

  • Never use social media to uncover an applicant’s sexual orientation. “Some managers are still using social media for [this type] of screening,” Cohen said. “Please make them stop.”

  • Never ask about marital status. Cohen told of a male friend of his who wore a wedding ring and was asked by an interviewer to “Tell me about your wife.” Cohen’s friend was married to another man. Avoid these kinds of questions and comments, Cohen said.

  • Be ready to answer tough questions from LGBTQ applicants. For instance, Cohen said, every interviewer should be prepared to answer how many LGBTQ employees at their organization— assuming those employees are “out” — are in leadership positions.

  • Don’t acquiesce to clients or managers who refuse to work with LGBTQ workers because of religious or other objections. Cohen told of one man who said his client wouldn’t allow him to put openly gay employees on a jobsite. “We don’t go along with these kinds of demands,” Cohen said. “Make no mistake—you are also discriminating against these employees.”

  • Don’t use derogatory language. For instance, referring to transgender workers as “he-she” or “him-her” is unacceptable. Also unacceptable, he said, are comments like “You don’t seem gay.”

  • Don’t make the bathroom a big deal. Cohen said he is constantly confronted with questions from HR managers about which bathroom transgender employees should use. “I don’t understand why this is an issue,” Cohen said. “The person uses the bathroom matching the gender that the person presents. If the bathroom is an issue, what’s going on in your bathroom? Are there people walking around naked in your bathroom? Do you have doors on the stalls? You do, right?”

  • Cohen offered a few suggestions for ensuring that workplaces are LGBTQ-friendly:

  • Review and revise employment policies. This includes, he said, application and pre-employment materials, EEOC policies, harassment-prevention policies, employee handbooks, codes of conduct, anti- bullying policies, and appearance policies and dress codes.

  • Create written guidelines for HR professionals and managers. These guidelines should include how to properly use names and pronouns, especially for transgender workers; the use of gender-specific facilities like bathrooms and locker rooms; employee confidentiality and privacy issues; how to handle leaves of absence and flexible schedules; and matters concerning personnel and administrative records.

  • Educate and train managers. Managers, he said, need to understand the basic terms and concepts associated with the LGBTQ community, the common misconceptions and biases that LGBTQ workers face, employee rights, prohibited conduct, an employer’s duty to take corrective action when it witnesses discrimination, and the unique needs of transgender employees.

  • Review and consider changes to employee benefits. HR managers, he said, should consider how their LGBTQ employees are included in the company’s health and welfare coverage, Family and Medical Leave Act benefits, and other leaves of absence. HR managers also need to consider the recognition of same-sex spouses for retirement purposes.

Dana Wilkie is an online editor/manager for SHRM.


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