Changing LGBTQ + Workplace Demographics And Rights: How Prepared Are You?
Establishing a workplace culture of equity
Posted on 05-31-2018, Read Time: Min
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In the midst of the #MeToo movement, a related push for LGBTQ+ equity in the workplace continues to build steam and should be on employers’ radar screen. From Caitlyn Jenner to Amazon Prime’s Transparent, awareness of transgender individuals is growing and more people – particularly youth — are giving the LGTBQ+ community a stronger voice. As the push for awareness and social acceptance continues, employers are likely to experience more LGBTQ+ job applicants and employees.
This likely change in workplace demographics is cause for employers to proactively understand the existing legal rights of LGBTQ+ individuals in the workplace and to assess and establish compliant employment policies and practices.
The Evolving Law of the Land
A minority of states and some municipalities currently have employment laws prohibiting aspects of LGBTQ+ discrimination in employment. At the federal level, however, no employment law expressly prohibits LGBTQ+ discrimination against job applicants or employees. Nevertheless, starting in 2012, the Equal Employment Opportunity Commission (EEOC) took the position under the former Obama administration that the sex discrimination prohibition in Title VII of the Civil Rights Act of 1964 (Title VII) extends to gender identity and sexual orientation discrimination.
Tying its position to U.S. Supreme Court precedent, the EEOC has argued that LGBTQ+ discrimination is a form of sex stereotyping discrimination that violates Title VII. In 2014, the U.S. Attorney General Eric Holder followed the EEOC’s lead, taking the position that the U.S. Department of Justice (DOJ) would pursue LGBTQ+ discrimination cases in court.
That was then.
Today, there is uncertainty as to whether the EEOC will continue its Obama-era agenda of trying to expand LGBTQ+ rights under Title VII. Under the Trump administration, a number of events signal the potential for a shift by the EEOC. For example, the Trump administration has announced its intention to limit transgender individuals’ ability to serve in the U.S. Military. In addition, U.S. Attorney General Jeff Sessions has reversed the DOJ’s position on Title VII, putting the DOJ at odds with the EEOC.
In an October 2017 memo to DOJ officials, Sessions stated that Title VII does not prohibit transgender or sexual orientation discrimination in employment. The Trump administration has also signaled its intention to safeguard and perhaps expand legal religious exemptions contained in employment discrimination and other laws, including by founding new offices focused on religious liberties.
One likely reason that we have not yet seen a shift in the EEOC’s Title VII position is that Trump’s various nominees to the EEOC have not yet been confirmed. It is anticipated that, if the pending nominees are confirmed, the EEOC will have a Republican majority. At that point, it is possible that the EEOC may reverse its Obama-era position on Title VII or scale back its enforcement agenda in this area.
Regardless of the potential direction of the EEOC, the Title VII coverage debate has been and will continue to play out in the federal courts. A number of federal district and appellate courts have addressed the Title VII coverage debate, and a growing split in authority could eventually result in the U.S. Supreme Court deciding to weigh in.
The Second, Sixth and Seventh U.S. Circuit Court of Appeals have held that Title VII’s prohibition on sex stereotyping discrimination does extend to LGTBQ+ discrimination, while the Eleventh Circuit has ruled to the contrary. See: EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. Mar. 2018), Hively v. Ivy Tech Community College (7th Cir. April 2017); Zarda v. Altitude Express (2nd Cir. 2018); Evans v. Ga. Reg’l Hosp.(11th Cir. Mar. 2017).
Tying its position to U.S. Supreme Court precedent, the EEOC has argued that LGBTQ+ discrimination is a form of sex stereotyping discrimination that violates Title VII. In 2014, the U.S. Attorney General Eric Holder followed the EEOC’s lead, taking the position that the U.S. Department of Justice (DOJ) would pursue LGBTQ+ discrimination cases in court.
That was then.
Today, there is uncertainty as to whether the EEOC will continue its Obama-era agenda of trying to expand LGBTQ+ rights under Title VII. Under the Trump administration, a number of events signal the potential for a shift by the EEOC. For example, the Trump administration has announced its intention to limit transgender individuals’ ability to serve in the U.S. Military. In addition, U.S. Attorney General Jeff Sessions has reversed the DOJ’s position on Title VII, putting the DOJ at odds with the EEOC.
In an October 2017 memo to DOJ officials, Sessions stated that Title VII does not prohibit transgender or sexual orientation discrimination in employment. The Trump administration has also signaled its intention to safeguard and perhaps expand legal religious exemptions contained in employment discrimination and other laws, including by founding new offices focused on religious liberties.
One likely reason that we have not yet seen a shift in the EEOC’s Title VII position is that Trump’s various nominees to the EEOC have not yet been confirmed. It is anticipated that, if the pending nominees are confirmed, the EEOC will have a Republican majority. At that point, it is possible that the EEOC may reverse its Obama-era position on Title VII or scale back its enforcement agenda in this area.
Regardless of the potential direction of the EEOC, the Title VII coverage debate has been and will continue to play out in the federal courts. A number of federal district and appellate courts have addressed the Title VII coverage debate, and a growing split in authority could eventually result in the U.S. Supreme Court deciding to weigh in.
The Second, Sixth and Seventh U.S. Circuit Court of Appeals have held that Title VII’s prohibition on sex stereotyping discrimination does extend to LGTBQ+ discrimination, while the Eleventh Circuit has ruled to the contrary. See: EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. Mar. 2018), Hively v. Ivy Tech Community College (7th Cir. April 2017); Zarda v. Altitude Express (2nd Cir. 2018); Evans v. Ga. Reg’l Hosp.(11th Cir. Mar. 2017).
Establishing a Workplace Culture of Equity
Those employers who are clearly subject to existing LGBTQ+ discrimination law are required to ensure that their workplace policies and practices are inclusive and non-discriminatory towards LGBTQ+ applicants and employees. In addition, other employers might decide to adopt a culture of inclusiveness and equity as part of their overall diversity efforts and the potentially shifting workplace demographics. For these employers, the following are key action steps that can help to promote a welcoming and equitable workplace for LGBTQ+ individuals:
- It is important to ensure that anti-discrimination and anti-harassment are expressly drafted to include sexual orientation and gender identity as protected characteristics and to prohibit retaliation. In addition, policies should explain how an employee can report concerns to the employer and obtain assistance in as confidential a manner as possible. Policies also need to be more than a piece of paper. When an employer learns of potential discrimination or harassment, it should promptly investigate and take appropriate action, as may be necessary, to put a stop to any improper behavior, prevent its recurrence and remedy its effects.
- Conduct Standards Training: When conducting employee and manager training on workplace conduct and non-discrimination standards, employers should proactively discuss the equitable treatment of LGBTQ+ employees and business affiliates. Managers should participate in periodic training sessions separate from other employees given that their behavior can pose greater legal risks for employers and they have unique responsibilities to help an employer respond to potential discrimination or harassment.
During employee and manager training sessions, an employer should consider acknowledging that its employees could have differing personal, political, or religious beliefs that impact how they react to the training. An employer should consider explaining that its training is not aimed at policing personal thoughts or beliefs, but rather, is intended to make clear that community standards of respect and nondiscrimination apply among its workers and must be followed.
- Adopt Supportive Protocols: Given the potential for changing workplace demographics, employers may want to proactively put in place a plan for how a current employee’s gender transition would be handled to ensure a smooth and supportive process. Protocol steps to consider include, but are not necessarily limited to, the following:
- An employer should proactively communicate with the transitioning employee to understand the timing of the transition and the employee’s preferences for how the employer handles the transition.
- An employer should strive to create a one-stop process for updating an employee’s name in relevant documents and locations, such as the employee’s email address, personnel records, phone lists, identification badges and office name plates. If an employee has not had a legal name change, the legal name should be used for legal documents – such as a contract – but the employer could include “also known as” language in order to reference the employee’s preferred name.
- An employer should consider targeted training for those managers and employees who will work with the transitioning employee before and after the transition. This training should address the employee’s transition date, new preferred name and pronoun, and the employer’s expectation of respectful and professional treatment. An employer should also ensure that employees are told to respect the transitioning coworker’s privacy, including by not asking for private medical information or “outing” the coworker to individuals who have no reason to be told of the transition.
- Employers may also need to proactively communicate with customers who work with a transitioning employee to prepare the customer for an upcoming transition and to communicate the employer’s expectation of respectful and equitable treatment. An employer should also consider how to prepare to address any potentially negative customer reaction, as an employer can be held liable for discrimination by its customers.
Stay Tuned
Given that the employment rights of LGTBQ+ workers are still evolving, employers should stay attuned for new legal developments impacting their workforce. In addition, as the push for social awareness and acceptance continues and workplace demographics shift, new best practices are likely to emerge. Employers with legal equity obligations or who want to proactively pursue LGBTQ+ diversity and inclusion should monitor continuing developments.
Author Bio
| Megan Anderson is a Principal at Minneapolis-based Gray Plant Mooty and an MSBA certified employment and labor law specialist. She proactively partners with businesses, non-profit organizations, and higher education institutions to ensure employment law compliance and prevent legal claims. Megan regularly advises and trains employers on the full range of employment law issues, including hiring, compensation, performance management, termination, discrimination, etc. Visit www.gpmlaw.com Connect Megan Anderson Follow @GrayPlantMooty |
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