LGBTQ+ Rights: More Work Remains for HR

Allen Smith, J.D. By Allen Smith, J.D. April 7, 2021
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​The U.S. Supreme Court's ruling that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity has advanced LGBTQ+ rights, but more work remains to be done. Speakers at the Society for Human Resource Management's Employment Law & Compliance Conference on April 7 noted that questions continue to arise around correct pronouns for employees, individuals who want to use the restroom of the gender they identify with, and religious objections to LGBTQ+ rights.

Limits to Supreme Court Decision

The Supreme Court's decision last year in Bostock v. Clayton County was of major importance to employment law, but it did not cover state laws that aren't modeled on Title VII, gender nonbinary issues or the restroom concerns, said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.

Title VII covers employers that have 15 or more employees, but some state laws prohibiting sex discrimination cover smaller employers.

Marc Scheiner, an attorney with Duane Morris in Philadelphia, noted that 27 state equal employment opportunity laws do not protect the workplace from sexual-orientation discrimination and 28 do not protect workers from gender-identity discrimination. In other words, "the majority of state laws do not conform to Bostock." Consequently, employees at smaller companies may have fewer rights.

Pronoun Usage

Scheiner said that more employers are having conversations about gender in the workforce, and those conversations partly concern the use of pronouns for employees.

Use the pronouns the individual prefers, he said. Vendors may not comply with your rule, Scheiner continued, but with nameplates or signage, use the employee's preference.

More employees are using their preferred pronouns in their e-mail signature lines. Most of these employees are cisgender—of the gender assigned to them at birth—and display their preferred pronouns as a show of solidarity to others that it's OK to use their preferred pronouns. "It's promoting openness and a sense of authenticity," Scheiner said.

Phillips asked Scheiner during the conference if this practice in signature lines was a political statement, as one manager recently objected to her that it was. He said he didn't think it was any more than displaying a picture of one's family on a desk is a disclosure of one's sexual orientation.


Another issue that frequently arises is the use of restrooms or locker rooms when an employee is transitioning.

The person should be allowed to use the restroom consistent with his or her gender presentation, Phillips said. If a colleague is uncomfortable with that, he or she can choose to leave the restroom and depart in a respectful way, she added.

The opposition to letting someone use a restroom of the gender he or she identifies with is typically rooted in stereotypes and fear, she said, that the transgender individual is attracted to those in the restroom he or she is using or will attack someone. But Phillips said in her 20 years of working in this field, she hasn't heard of either happening.

Religious Objections

As for religious objections to working with someone who has a different sexual orientation or gender identity, Scheiner said that isn't acceptable, just as it wouldn't be acceptable to let someone object to working with someone of a different national origin, for example.

Phillips noted that in one case, Hewlett-Packard v. Peterson, the company displayed diversity posters in an office in Boise, Idaho. Each of the five posters showed a photograph of a Hewlett-Packard employee above the caption "Black," "Blonde," "Old, "Gay" and "Hispanic." Posters in the second series included photographs of the same five employees and a description of the featured employee's personal interests, as well as the slogan "Diversity is our strength."

The plaintiff in the case Phillips discussed, who describes himself as a devout Christian, believed that same-sex relationships violated the Bible's commandments and that he had a duty "to expose evil when confronted with sin." 

In response to the posters that read "Gay," he posted two Biblical scriptures on an overhead bin in his work cubicle. They were printed in typeface large enough to be visible to co-workers, customers and others.

He then posted a third scriptural passage: "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be put upon them."

His supervisor removed the scriptural passages after consulting her supervisor. Hewlett-Packard's harassment policy stated, "Any comments or conduct relating to a person's race, gender, religion, disability, age, sexual orientation or ethnic background that fail to respect the dignity and feeling of the individual are unacceptable."

The employee defended his actions in a series of meetings and asserted that Hewlett-Packard's workplace diversity campaign was an initiative to target heterosexual and fundamentalist Christian employees. He was placed on leave, but when he returned to the office, he reposted the scriptural passages and refused to remove them. After further meetings, he was fired for insubordination. He sued, and the 9th Circuit ruled in Hewlett-Packard's favor.

Phillips noted that the company did not immediately fire the employee but talked with him about what would be acceptable, engaging in the interactive process to try to identify an accommodation.

Some states have religious-exemption legislation that permits certain organizations to discriminate against LGBTQ+ individuals. Scheiner predicted there would be more such legislation to come. He also predicted more litigation over religious objections.

Phillips added it's important for HR to uphold policies and the law. HR can lead in what it says and does but also in what it doesn't say and doesn't do, she said.



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