A two part series by Lynn Lieber, Esq.
As more and more gay, lesbian, bisexual and transgender Americans are finding the confidence to “come out” of the proverbial “closet” as their true transgendered selves, American workplaces are finding it necessary to create policies not only for the equal employment of such individuals, but also for the legal protection of the employer.
Should employers be concerned about discrimination claims being brought by disgruntled GLBT employees even though they are not a protected class?
Yes. Gender identity and expression (GI&E) discrimination is currently prohibited by only eight states: California, District of Columbia, Maine, Minnesota, New Mexico, Rhode Island, Vermont and Washington. Additionally, hundreds of municipalities have laws or policies that bar anti-GLBT discrimination.
There is also proposed federal legislation—the Employment Non-Discrimination Act (ENDA)—which would bar employers from using a person’s sexual orientation as the basis for employment decisions, including hiring, firing, promotion or compensation. The proposed legislation does not contain provisions that protect transgender and intersex individuals from discrimination, although many argue that it should.
Currently, 14 states—California, Connecticut, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington and Wisconsin—prohibit discrimination in employment based on sexual orientation.
Lawsuits and claims filed by GLBT employees and rejected job applicants are increasingly in the news. Such cases exact a heavy price on organizations in time, legal fees and reputation. Employers that proactively establish diversity programs and comprehensive training initiatives for all employees and supervisors may be less vulnerable to lawsuits and punitive damages. A single highly-publicized discrimination lawsuit can affect an organization’s reputation, the morale of its employees and its perception among job candidates for many years in the future.
What are the benefits of supportive GLBT practices in the workplace and what are the costs?
Implementing workplace protections for GLBT employees and enhancing their benefit packages not only makes the workplace more respectful to those employees, but it makes good business sense as well. There is increasing competition among organizations to offer the same protections and benefits to GLBT employees as other employers in their industry. In certain business sectors, such as financial services and technology, there is substantial competition.
Many organizations are realizing that the GLBT community has huge buying power (estimated at $641 billion dollars a year) and that having a workforce that reflects the demographics of society can have significant financial benefits. Finally, employers are rapidly discovering that GI&E-friendly policies, protections and benefits are important tools for recruitment, employee job satisfaction and retention for all employees.
The costs of making the workplace GLBT and GI&E friendly are relatively minimal when balanced with the substantial financial and workplace benefits from enacting such policies. The largest “cost” would be providing domestic partner benefits to employees’ partners. Employers can accommodate employees who are transitioning through one-on-one discussions with the affected employee, education to coworkers and restroom procedures. There is not much cost associated with this process, except perhaps attorneys’ fees for legal consultation on how to handle the situation.
What types of benefits might an employer offer GLBT employees that it cannot or does not offer other employees?
There are three particular types of benefits that a GLBT employee would greatly benefit from:
1. Extend benefits to transgender employees. Employers can modify health- or disability-related leave policies to allow transgender employees to take leave associated with medically necessary treatments and procedures. Removing “transgender exclusions” from health insurance policies may be administratively difficult, but employers can modify their internal policies.
2. Offer Domestic Partner benefits. Providing Domestic Partner benefits demonstrates an organization’s commitment to GLBT employees. If such benefits are offered, employers should implement them with the same provisions as those offered to married couples.
3. Provide other benefits uniformly. Any benefits the employer offers to heterosexual couples should also be offered to GLBT couples. These could be such things as employee discounts and invitations to outings or events.
Are there any risks associated with offering GLBT employees benefits that other employees are not offered?
The only benefit that might be extended to GLBT employees and not to the general employee population are health benefits and leave of absence opportunities GLBT employees might need to have medical procedures and treatments. Since employers grant medical benefits and leaves for other types of medical conditions this is not likely to be problematic. Most other benefits would apply equally to heterosexual and GLBT employees.
Additional tips for managing GLBT in the workplace:
Change personnel and administrative records. Employers should develop procedures for addressing situations in which an employee’s gender expression does not match certain official identity documents.
Grant restroom access according to an employee’s full-time gender presentation. Organizations should permit an employee to use restrooms that correspond to his or her full-time gender presentation, regardless of what stage that individual is in terms of their transition process. Employers should permit use of facilities by any individual without infringing on the privacy of other users. Restroom stalls with locking doors can fulfill this requirement. Some employers choose to install a single stall unisex restroom that can be used by either the transitioning employee or their coworkers.
Ensure employee privacy. Treat an employee’s transgender status as private and confidential. Employers are required by federal law (the Privacy of Personal Health Information and the Health Insurance Portability and Accountability Act) to keep employee medical information confidential.
Read Part I of this series...
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About Lynn Lieber: Lynn D. Lieber, Esq. is a seasoned employment law attorney and a nationally recognized spokeswoman on harassment and discrimination law. Lieber is also founder and CEO of Workplace Answers -- www.workplaceanswers.com/Default.aspx -- a San Francisco-based provider of Web-based legal compliance education. Her areas of expertise include:
· Employment law, changes in laws, and how changes affect businesses
· Unlawful harassment prevention
· Protected categories under Title VII, the Civil Rights Act of 1964
· Sexual harassment prevention
· California’s AB 1825 legislation
· Workplace violence prevention
· Workforce management
· Sarbanes-Oxley/Ethics
· Workplace diversity and related business strategies
· Employment leave laws
· HR policy acceptance
· Legal compliance education
