22 Jun Pride Month: LGBT Inclusion at Work

72 countries around the globe prohibit discrimination in employment because of sexual orientation.

The United States is not one of them.

Many people assume that Title VII of the 1964 Civil Rights includes Federal Government protections based on sexual orientation and gender identity. Title VII generally applies to employers with 15 or more employees, including federal, state, and local governments. What the law actually says is that it “prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.”

According to examples of legal decisions documented by the U.S. Equal Employment Opportunity Commission (EEOC), cases for transgender and LGBT* plaintiffs have been won under Title VII, but often under the argument of sex discrimination (a protected class) based on gender non-conformity. The case often cited is Price Waterhouse v. Hopkins from 1989, when “The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII.” That precedent has been cited to uphold subsequent rulings.

The EEOC’s own statement about Title VII says that it “interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.” That said, legal protection for LGBT individuals cannot be taken for granted, as evidenced by President Trump’s recent rescinding of the executive order by President Obama, which banned LGBT discrimination among federal contractors. Additionally, earlier this month the U.S. Department of Commerce moved to exclude sexual orientation and gender identity in their Equal Employment Opportunity statement.

22 states plus the District of Columbia have laws in place that protect against discrimination on this basis of sexual orientation and gender identity in employment in the public and private sector. Marriage equality is a federal law. But that does not preclude discrimination or harassment at work. According to a study by UCLA’s William’s Institute, 21 percent of LGBT employees reporting said that they have been discriminated against in hiring, promotions and pay. That number jumped to 47% for individuals who identified as Transgender and Gender Non-Conforming.

What does LGBT Inclusion mean for Businesses?

A best practice for companies who have a clearly articulated diversity and inclusion statement is to include sexual orientation and gender identity in the language. And, of course, it’s a best practice to have a clearly articulated diversity and inclusion statement, as well as a strategy that begins with a company’s leadership.

“Business leaders need to be proactive in creating a positive climate for their employees, inclusive of differences in sexual orientation and gender identity,” says Elmer Dixon, President of Executive Diversity Services. “Creating an environment where employees feel they are included and can fully contribute positively impacts employee satisfaction and encourages innovation in the workplace,” he adds. “Promoting inclusivity isn’t just a social or legal concern for companies, it’s a smart business decision.”

The good news is that in the last 15 years company policies have evolved to be more inclusive. As documented in the 2017 Corporate Equality Index (CEI) of the Human Rights Campaign Foundation, between 2002 and 2017 the percentage of CEI participants with Sexual Orientation in their U.S. Non-Discrimination Policy jumped from 92% to 99%. The percentage with Gender Identity in their U.S. Non-Discrimination Police jumped from 5% to 96% in that same time period. For global companies that protection extends to employees who are working in other countries, whether it is two weeks or two years.

Overall in the United States 75% of companies have non-discrimination policies that explicitly reference gender identity and 93% have policies that cover sexual orientation. The percentage of Fortune 500 companies offering domestic partner benefits has increased from 14% in 1999 to 64% in 2015. Of those Fortune 500 businesses, 40% offer transgender-inclusive healthcare coverage – up from zero in 2002. (As cited in this article by Caroline Vagneron, President of GLOBE, World Bank Group.) 

Tips for Creating an LGBT Inclusive Workplace

Many of the tips for creating an inclusive workplace that apply to other groups, such as race, ethnicity and religion also apply to inclusion for sexual orientation and gender identity in the workplace, such as:

• Include language prohibiting discrimination on the basis of sexual orientation in non-discrimination policy statements;
• Provide top-down training on issues regarding sexual orientation, gender identity and gender non-conformity in the workplace;
• Include training on the company’s non-discrimination policy in new hire orientation;
• Support LGBT employee resource and networking groups;
• Demonstrate a public commitment in terms of community outreach or foundation giving

Other considerations may also include:

• Ensure that equitable and privileges are granted to all employees, such as spousal health benefits and transgender health care coverage
• Provide gender neutral bathrooms

*A Final Note on Language

Is it LGBT or LGTQIA or…

LGBTQIA ncludes Lesbian; Gay, Bisexual; Transgender; Queer (or questioning); Intersex; Asexual (or Ally); Sometimes a P is added for Pansexual/Polysexual. The extension of letters is driven by the community, and continues to evolve to cover people of all genders and sexual minorities: People whose sex is neither male nor female, whose gender is neither male nor female and whose sexual orientation is not heterosexual.

Beyond the Binary

The language has evolved along with the evolving conversation about a broader gender spectrum, sometimes referred to as “beyond the binary,” meaning the traditional paradigm of two gender options, male and female.

Cisgender/Transgender

Another term more in popular use now is cisgender–denoting or relating to a person whose sense of personal identity and gender corresponds with their birth sex. This is opposed to transgender–denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex. It is a way for language to be power neutral—e.g. it’s not the norm and everything else, but simply different self-identities: cisgender, transgender pangender, etc. (Click here for additional tips for allies of transgender people.)

Need help setting up the LGBT inclusion best practices at your company? Contact us to get your strategy and program rolling.