By now, employers should be well aware of the landmark June 2020 U.S. Supreme Court decision in Bostock v. Clayton County. Voting 6-3, the justices declared it was illegal under Title VII of the Civil Rights Act of 1964 to discriminate against LGBTQ employees. Prior to that, many workplaces had begun demonstrating an increased dedication to creating an environment of inclusion and protection for LGBTQ employees.
Still, much room for improvement remains, as evidenced by a Human Rights Campaign (HRC) survey of U.S. workers reported in June 2018. Nearly half of respondents who self-identified as LGBTQ indicated that they remained closeted at work. Also, the top reason LGBTQ workers failed to report negative comments they heard in the office was that they did not think anything would be done about it.
One of the best ways employers can ensure fair treatment of LGBTQ employees is updating the employee handbook and enforcing the new rules. Employee handbooks should be a key cornerstone of human resources practice at any workplace, large or small. Unfortunately, they often receive only occasional and rudimentary reviews. Updates and revisions do not occur until major laws change.
As an employment law attorney, I recommend that every client conduct a top-to-bottom review of their handbook’s language, policies, procedures and expectations each year. Doing this can protect an employer from lawsuits, especially ones related to claims of discrimination or harassment. Additionally, handbooks set standards and expectations for employee behavior, particularly when it comes to establishing a workplace where LGBTQ employees are treated with respect.
Brief discussions of the four areas of their handbooks that employers should prioritize for review in order to help ensure sensitivity to and protections for LGBTQ employees follow.
Antidiscrimination, Harassment and Retaliation Protections and Complaint Procedures
Employers should be sure to include gender identity, gender expression and sexual orientation to the list of protected categories. Employers should also clarify that harassment of LGBTQ employees is strictly prohibited.
Harassment is a form of employment discrimination that violates Title VII. It is legally actionable when it results in an adverse employment action or when it creates a hostile work environment that the employer failed to prevent or correct. There are many subtle and pervasive missteps that can be classified as harassment or lead to a hostile work environment for LGBTQ employees.
Be sensitive to the fact that, as noted earlier, most LGBTQ employees do not report harassment or negative comments to a supervisor or HR out of fear of retaliation or of harming relationships with coworkers. According to the Equal Employment Opportunity Commission, retaliation for reporting a claim is the most frequently alleged basis of discrimination.
It is crucial, therefore, for the employee handbook to spell out a clear process for LGBTQ employees to safely raise complaints and to be protected from retaliation. Inclusion of such protection provisions will underscore the employer’s commitment to supporting LGBTQ employees and go a long way toward creating a workplace where it feels safe to report harassment or discrimination based on gender identity, gender expression and sexual orientation.
State and Local Laws
Currently, 22 states have laws that provide employment protections and prohibit discrimination based on a person’s sexual orientation. Twenty-one states also provide legal protections for gender identity.
Employers should be sure to check their own policies regarding LGBTQ employees for compliance with the most up-to-date versions of state and local laws. A detailed state-by-state report on LGBTQ-related laws and policies can be found in the HRC’s State Equality Index at www.hrc.org/resources/state-equality- index.
Dress Codes
Despite recent trends toward more informal office attire, many employers still include dress codes in their employee handbooks. This type of guidance helps eliminate confusion about what it is appropriate to wear in a given workplace. Dress code provisions can also vary depending on an employee’s job requirements (e.g., warehouse duties vs. client-facing duties).
According to the HRC, 1-in-5 LGBTQ workers report being told or receiving indications that they should dress in a more feminine or masculine manner. This is a big reason why dress codes should be reviewed to, first, ensure that they are gender-neutral and, second, that employees are advised that all employees should avoid making sexually stereotyping comments.
Specifically, no handbooks should include dress code provisions that reinforce gender stereotypes such as requirements or suggestions that women wear makeup. When wearing a uniform is required, include a gender-neutral option and allow employees to choose whichever uniform aligns with their gender identity. Most importantly from a legal perspective, whatever the dress code is, it should be enforced consistently and without favoritism or gender bias.
Gender-Neutral Language
The employee handbook should include a clearly stated expectation that employees are required to use their colleagues’ preferred pronouns. In addition, gendered language that may appear to negate support for a gender-diverse workforce should be eliminated from the handbook.
For example, provisions that refer to family or bereavement leave, employer-provided supplemental life insurance for a partner, dependent child care, health care benefits or employee discounts should be rewritten to include gender-neutral terms such as “they,” “them,” their,” “themselves,” “sibling(s),” “parent(s),” “child(ren)” and “grandparent(s).” Doing this helps make the workplace more inclusive of transgender individuals. A helpful toolkit with other suggestions is available in the Workplace section of the HRC website.
In the end, though, none of these important updates to language or policies will matter if the HR team does not make employees aware of them. The final and most important steps in all of this are to highlight and communicate specific employee handbook changes in visible and prominent ways, require all employees to acknowledge that they have received and understand the updated policies and expectations, and create a top-down culture of compliance among managers and upper-level employees.
01 December 2020
Category
HR News Article