How to Make the Workplace LGBTQ+ Friendly
It is important to keep in mind that while Title VII of the Civil Rights Act covers discrimination based on sex, it does not cover sexual orientation or transgender identity unless the individual has transitioned, in which case it is covered as it is viewed as sexual discrimination in the eyes of the law. Many states in the U.S. have passed ordinances and/or laws that prohibit discrimination on the basis of sexual orientation and gender identity and/or expression, but those laws are local rather than federal and can be overturned in an election. This can leave many LGBTQ+ people wondering from one election to the next whether they, their jobs, and/or their ability to find housing will be protected.
In the workplace, LGBTQ+ individuals have little recourse if their employer doesn't have a clear policy that explicitly states discrimination on the basis of sexual orientation and/or gender identity. This makes it even more important that employees ask organizations to create and implement LGBTQ+ friendly policies with the expectation that all employees will be educated about the issues and expected to adhere to the policies.
Employee associations or in-house unions are the first place to look for help in fashioning a non-discrimination policy. These organizations may be able to make suggestions for how to draft policies, apply pressure to the employer to get the policies implemented, and help form alliances with other groups.
If there are no in-house groups available to help with the process of creating a non-discrimination policy, then it would be wise to consult with an LGBTQ+ Employee Resource Group (ERG). These groups are designed specifically to provide information and support for LGBTQ+ employees and their employers. ERGs will be able to not only help set up an employee work group and advise the group on how to craft a non-discrimination policy, but they often are able to take the lead in establishing diversity education and safe space programs that use stickers and signs to indicate that the workplace is LGBTQ+ friendly.
What should a non-discrimination policy look like?
A good non-discrimination policy will include clear language that states that discrimination will not be tolerated, specifics about the kind of prohibited behavior, descriptions of the consequences and penalties for violating the policy, a clear outline of the grievance process and how the company will adjudicate a complaint, a timeline for investigating a complaint, the commitment to quickly conducting an investigation into a complaint, and the promise of protection against retaliation. These elements are the basis for any good non-discrimination policy, and when properly developed and enforced can go a long way toward ensuring that LGBTQ+ individuals feel safe and welcome in the workplace.
While many companies have policies covering sexual orientation, they often do not have clear policies about gender. Policies that protect gender identity and expression in the workplace help to keep companies from forcing employees to conform to extreme gender stereotypes and make everyone, no matter what their sexual or gender orientation, more secure in the workplace. Including transgender individuals in the non-discrimination policy is vital to ensuring that all employees are afforded the same rights in the workplace.
It now is widely considered sex discrimination when someone is treated differently for failing to conform to sex stereotypes or for changing their sex because gender identity is part of one's sex. In 1989, the Supreme Court set the precedent regarding the ability of an employer to treat someone differently based on stereotypical sex expectations and ruled that it constituted sex discrimination. As we learned in a previous lesson, in the case of Price Waterhouse vs. Hopkins, the Court ruled that Title VII did indeed protect a female accountant who didn't make partner at her firm solely because she didn't match her employer's expectation of what a woman should look and act like.
In 2008, the case of Schroer vs. Billington moved things ahead a little further. A transgender woman who was offered a job at the Library of Congress when she was "David" was told she didn't have the job after all when she shared her intention to transition to "Diane." The court analogized that just as discrimination "because of religion" easily encompasses discrimination based on a change from one religion to another, discrimination based on a person's change of sex is discrimination because of sex. Some laws define sex or gender as inclusive of gender identity. For example, since 2002, New York City's Human Rights Law, has redefined "gender" as referring not just to someone's sex but also to a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the legal sex assigned to that person at birth.
What these cases underscore is the right of the individual to define their own gender identity, and their right to dress and/or behave in a manner that is authentic for them whether or not it corresponds with the prescriptive behavior or appearance that the employer assigns.
A major challenge for transgender and gender-nonconforming (TGNC) individuals is that they often are required to become workplace educators when employers do not already have programs in place. This can mean that TGNC individuals may find themselves in situations where they aren't allowed to use the bathroom that aligns with their chosen gender identity or it could mean they have to navigate a complex set of unknowns in terms of workplace attitudes and health benefits if they decide to transition on the job. This can be an undue burden for a TGNC employee and one that the company proactively can eliminate.
The Lambda Legal Defense organization recommends that employers take the wheel when it comes to establishing policies for TGNC employees. They recommend that the employer ensure that all employees have access to restrooms that match who they are, that they utilize health insurance policies that allow for a wide range of options and include TGNC health needs, and that they proactively educate employees about TGNC issues including what it means to transition and the use of proper language rather than waiting for the first employee to transition. This proactive approach to TGNC anti-discrimination education makes it much more likely that TGNC individuals will feel supported and welcome to be themselves.
For the past sixteen years, the Human Rights Campaign has published the Corporate Equity Index (CEI) that features rankings of employers that take concrete steps to ensure greater equity for LGBTQ+ workers and their families in the form of comprehensive policies, benefits, and practices. The CEI rating criteria is based on four key pillars--non-discrimination policies across business entities, equitable benefits for LGBTQ+ workers and their families, internal education and accountability metrics to promote LGBTQ+ inclusion competency, and public commitment to LGBTQ+ equality. Companies are given points in each of these four categories and scores range from 0 to 100. In 2018, CEI ranked the top companies, those earning the full 100 points, as Apple, McKesson Group, CVS Corp., General Motors, Co., Ford Motor Co., and AT&T.
Their success in creating an inclusive workplace that welcomes LGBTQ+ individuals is based on proactive policy making and comprehensive universal benefits for all employees. These companies also have taken action to ensure that they actively are working to create training programs that reinforce their vision of an educated and inclusive workforce. As good as these companies have been in working toward LGBTQ+ inclusion, CEI made it clear in their 2018 report that in 2019, companies are again going to have to improve their policies and ensure that TGNC employees are receiving all of the benefits they need in order to be able to care for themselves and their families, for example, by providing healthcare plans, 100% coverage of transition surgery, hormones, and medications.
As we saw in our lesson on how to address sexual harassment, the best way to approach any issue is through a comprehensive training program that educates employees and then monitors the workplace to ensure that the policies and practices are being enforced consistently. In the Chicago Ford plants, female workers pointed out that during the three year period that Ford had appointed investigators to flush out those workers and supervisors who were sexually harassing women, the abuse abated. The educational programs were more than just a cursory attempt at telling employees not to harass each other and instead, provided comprehensive training that led to a deeper understanding of the problem and the solutions needed to solve it. Things got better at the Ford plants but when the investigators left, the problems returned with a vengeance.
The words we use to talk about lesbian, gay, bisexual and transgender or "LGBTQ+" people and issues can have a powerful impact on our conversations. The right words can help open people's hearts and minds, while others can create distance or confusion. We covered the basic sex and/or gender terminology in Lessons 3 and 4, but there are a few more terms that are important to differentiate between when we think about LGBTQ+ workplace issues and work to actively address them.
Heterosexual privilege refers to the societal advantages that heterosexuals get which LGBTQ+ people don't. If you're straight, there are a host of things in your sexual orientation backpack that make it possible for you to operate on cultural cruise control and one of them is heteronormativity, which refers to cultural bias that considers heterosexuality--being straight--the norm. If when you first meet someone you automatically assume they're straight, that's heteronormativity. Heterosexism refers to a system of oppression that considers heterosexuality the norm and discriminates against people who display non-heterosexual behaviors and identities, while cissexism refers to a system of oppression that says there are only two genders considered the norm and that everyone's gender aligns with their sex at birth. Homophobia refers to the irrational prejudice, fear, or hatred of people who are attracted to members of the same sex while biphobia refers to the prejudice, fear, or hatred directed at bisexual people, and transphobia is prejudice, fear, or hatred of transgender and transsexual people.
When talking about non-discrimination laws that protect LGBTQ+ people from being unjustly fired from their jobs, remind people of our common, shared values, which are fair and equal treatment for everyone. The importance of hard work and the chance to earn a living is summed up as the following. "All hardworking people in our city and/or state including gay and transgender people should have the chance to earn a living and provide for themselves and their families. Nobody should have to live in fear that they can be legally fired for reasons that have nothing to do with their job performance."
The key to ensuring that LGBTQ+ individuals are actively included and feel safe and welcome in the workplace is through comprehensive non-discrimination policies combined with training programs that educate workers and give them the tools they need to be able to participate in a diverse and respectful workplace. This means talking about the difficult issues and challenges that people face as they confront their own stereotypes and lack of accurate information. This means providing workers with the correct terminology and language to use when referring to their LGBTQ+ co-workers, then helping them understand the benefits of inclusionary policies as well as the consequences of not following them.
