The Supreme Court’s decision earlier this year to apply discrimination protections to gender identity and sexual orientation was a huge win for advocates of LGBTQ rights.
Until that decision, it had been technically legal in many states to fire employees for no other reason than for being gay or transgender, or for being non-conforming to traditional gender standards in other ways.
The recent decision is significant in the legal world and is important for employers to learn and understand. But if the leaders at your workplace have already been working to establish a culture of respect and civility for everyone, this ruling shouldn’t change too much about the way you’ve been operating.
Here’s what you need to know about sexual orientation and gender identity workplace discrimination.
A Brief Summary of Title VII and the Ruling
The legal website Justia does a good job of summing up Title VII of the U.S. Civil Rights Act of 1964, which applies to any U.S. employer with 15 or more employees. Here are the main points:
- No person employed by a company or applying to work for that company can be denied employment or treated differently with regard to any workplace decision on the basis of perceived racial, religious, national, sexual, or religious characteristics.
- No employee can be treated differently based on his or her association with someone who has one of these protected characteristics.
- Employment decisions may not be made on the basis of stereotypes or assumptions related to any protected characteristic.
In its most recent ruling, the Supreme Court had to decide whether the protected characteristic of “sex” applies beyond sex assigned at birth and could be used to protect the rights of gay and transgender workers in the workplace, as well.
The cases in question involved citizens who were fired from their jobs after disclosing being gay or transgender at work. As Justice Neil M. Gorsuch wrote in the majority ruling (as reported by the New York Times):
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Gorsuch went on to say it was impossible “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Beyond Hiring and Firing
When most of us think of discrimination lawsuits, we think of the most egregious examples. These include cases of employees being fired due to a protected characteristic, or perhaps an employer who refuses to hire or even interview people of a certain protected class.
However, federal workplace protections go well beyond hiring and firing for any protected characteristic — and that now officially includes gender identity and sexual orientation.
Here are just a few of the areas where discrimination violations might come up besides hiring and firing:
- Recruiting and training
- Promoting and succession plans
- Scheduling and transferring
- Assigning work
- Measuring performance, including disciplining and giving benefits
However, of course, your risk doesn’t end with the official, managerial actions where there’s a clear paper trail. If a lawyer can show that the employer was or should have been aware of severe or widespread harassment in the workplace of employees of a protected class but made little attempt to stop the behavior, the employer can be held responsible.
As we wrote in our post Subtle Workplace Harassment: 5 Types to Look Out For, harassment doesn’t have to be overt or even intentional. Jokes, harsh management tactics, and nonverbal cues and messages can all contribute to a hostile work environment.
It’s crucial that organizations prevent behaviors that are technically legal but could collectively create a hostile or exclusionary environment if left unchecked.
Restrooms, Privacy, and More
Of course, there are particular issues to watch out for when it comes to making sure gay and transgender employees feel safe, welcome, and able to succeed at work.
Let’s start with the issue that keeps making the headlines: restrooms.
According to the National Center for Transgender Equality, several federal courts and the EEOC have found that denying access to facilities consistent with your gender identity can constitute discrimination.
As their site explains, “Employers cannot demand medical or legal documentation of your gender as a condition of restroom access, or limit you to using a specific restroom separate from other employees. Agencies also cannot require you to use facilities that are unsanitary, potentially unsafe, or located at an unreasonable distance from your work station.”
Harassment for transgender people can also look like repeated and intentional use of the wrong name or pronouns, or invasive, disrespectful personal questions regarding gender identity.
In fact, your employees must determine the conditions under which they disclose their transgender status or gender identity — employers should under no circumstances disclose those details. Any limits they put on employees discussing details about their personal lives must be imposed equally among all employees and not used to target transgender people.
Back to the Basics: Creating a Welcoming Workplace
Learning about the specific hurdles facing the transgender community so you can better help your employees is important.
However, the best workplace education and training can help your employees learn to empathize with all of their colleagues — not just those of different gender identities and sexual orientations, but different ethnicities, genders, ages, and backgrounds, too.
When we create a workplace culture where people of all walks of life and ways of thinking feel comfortable being themselves, we not only steer clear of discrimination and harassment that can land us in legal trouble, but we also create a workplace that attracts and retains the best talent.
When people of all walks of life feel welcome in our workplace, we attract and retain the best talent — and avoid potential lawsuits, too.
This kind of workplace culture doesn’t happen on its own. It requires commitment from leadership to welcome bad news and criticism, and model how to listen with respect and apologize when it’s necessary.
These are skills that can and should be developed in each of your employees through a training initiative like ELI’s Civil Treatment Workplace. Our award-winning training encourages participants to actually practice these skills so they can be ready to use them when the occasion inevitably arises.