Federal and, in some instances, state and local law protects several groups of people in the workplace based on their sexual or gender identity.  Given the newness of these protections, as well as the diversity of characteristics and people within this group, some employers are finding it difficult to know how to react to and accommodate the needs of this group.

Definitions:

LGBTQ+ stands for Lesbian, Gay, Bisexual, Transgender, and Queer with the “+” representing the numerous other sexualities and gender identities covered by this broad term. While employers are not required to know all of the terms, they are required to be accepting, treat an employee equally, and protect them from discrimination, harassment, or retaliation.

DEI is a term encapsulating the goals companies should have when creating policies, procedures, and practices with respect to employees in any protected group (including race, national origin, age, and/or LGBTQ+).  While descriptions vary slightly from source-to-source, common definitions include (as found at DEI Expert Hub):

Diversity – Having different types of people from a wide-range of identities with different perspectives, experiences, etc.

Inclusion – Putting diversity into action by creating an environment of involvement, respect, and connection – where the richness of ideas, backgrounds, and perspectives are harnessed to create value.

Equity – Removing the predictability of success or failure that currently correlates with any social or cultural factor, examining biases, and creating inclusive environments.

The basics – legal protection:

On June 15, 2020, the US Supreme Court issued a landmark 6-3 decision that includes sexual orientation, including LGBTQ+ employees, as protected under Title VII. This means that terminating or taking other negative employment actions against an LGTBQ employee based on their sexual or gender identity constitutes sex discrimination and therefore is against the law.  While several states, counties, and cities had these protections prior to the ruling, the US Supreme Court’s decision makes it the law for every employer who falls under Title VII of the Civil Rights Act (which applies to most employers).

In response to the US Supreme Court’s decision, the minimum action all employers should take is to:

• Review and revise their non-discrimination, harassment, sexual harassment, and non-retaliation policies to include protections for LGBTQ+ groups relating to sexual orientation, gender expression, and transitioning status.
• Update other policies which may be impacted (directly or indirectly) by sex and gender stereotypes, such as dress code, benefit coverage, job requirements, and leave entitlement.
• Ensure all policies and procedures are applied equally to both sexes without regard to sexual orientation, gender identity, or transgender status.
• Train all managers and employees that any and all discrimination, harassment, sexual harassment, and retaliation violates the law and therefore company policy, including the newly-protected groups.
• Enforce all policies fairly and discipline any employee, manager, client, or vendor who discriminates, intentionally or unintentionally, against an employee in a group protected under Title VII or any other law such as ADA, ADEA, USERRA, and IRCA.

Beyond legalities:

We encourage our clients to go further than simply “following the law” to experience added benefits. According to research, fostering DEI within the workplace has been found to increase company cash flow by 2.3 times and revenue by 19%, and team performance increases by 30%. Additional research shows that employees in an inclusive organization have higher job satisfaction, lower turnover, higher productivity, higher employee morale, improved creativity and innovation, improved problem solving, increased organizational flexibility, and all-around better quality of work life. By hiring, training, and promoting employees so they are active participants in policy and decision-making, employers have ready access to various perspectives, ideas, and experiences to strengthen their business practices.

Find reliable resources such as the National Center of Transgender Equality to learn what the LGBTQ+ statuses mean and what LGBTQ+ individuals go through. While every LGBTQ+ person is different, this research will help you examine your policies, practices, and procedures for places of improvement in preparation for an employee asking for accommodation.

Some accommodations may include:

• Use the name they prefer, even if different than what is on their documentation.
• Use their preferred pronouns which could be “he / him / his”, “she / her / hers”, or “they / them / theirs” or perhaps no pronoun at all.
• Offer assistance when a person is transitioning into the gender they identify with from the one of their birth. This may be offering a private bathroom or updating their email address.
• Allow flexibility in your dress code to allow individuals to wear clothing according to their preference rather than their gender identity or gender of their birth.
• Extend that flexibility to your personal appearance policy with regards to hair styles, makeup, behavior, voice, or body characteristics.

You should be understanding and respectful, asking for their guidance and help along the way. Your goal should be to learn to make a better workplace for them and everyone else.  Remember, it is not the responsibility of the LGBTQ+ community to teach you – it is your responsibility to learn.

Some critical don’ts include:

• Do not assume anything and do not treat all LGBTQ+ employees the same. Let each LGBTQ+ employee ask and explain, then come up with a plan together.
• Do not allow other employees to gossip or treat LGBTQ+ employees differently or exclude them from workplace interactions.
• Do not allow managers to overlook LGBTQ+ employees when it comes to advancement, training, and salary increases. Performance should be evaluated fairly and consistently based on essential job-based aspects, not preferences or stereotypes.
• Do not allow third-parties such as clients and vendors to harass or discriminate against your LGBTQ+ employees. As with other protected groups, you are responsible to protect employees from harassment, discrimination, or sexual harassment from anyone, even non-employees.

In summary:

By actively creating more opportunities and fostering a productive environment for LGBTQ+ employees, you will reap tangible benefits. Being open to the possibilities will allow you to discover new ways to grow your business and keep your best employees.

If you have any questions about how to navigate the LGBTQ+ landscape or how to respond to an employee’s request, reach out to us at Affinity HR Group.  Visit our website to learn more about our services or connect with us at contact@AffinityHRGroup.com or 877-660-6400.

By Paige McAllister, SPHR, SHRM-SCP, Vice President for Compliance – Affinity HR Group, Inc.