- On June 19, 2019
- Employment Law, LGBTQ
The month of June is recognized as LGBTQ Pride Month in commemoration of a historic raid in June 1969 of a traditionally gay bar, The Stonewall Inn, in Greenwich Village, NYC. The month of June is therefore recognized as LGBTQ Pride Month. In many cities across America, support for LGBTQ pride symbolized by the many colorful rainbows and rainbow flags displayed by businesses and on public thoroughfares.
Despite this visible public support of LGBTQ rights, LGBTQ individuals are a group of the most discriminated demographic worldwide. This discrimination and harassment is particularly concerning when it takes place at an individual’s workplace. Numerous LGBTQ individuals face hostility at work, blatant discrimination on job offers/promotions, and also are denied equal access to employment terms and conditions. Many American companies are not prepared or equipped to manage or recognize the issues that surround the rights of LGBTQ individuals. Some companies are not even aware that problems exist and do not even speak in the proper vernacular when it comes to the LGBTQ community.
There is often confusion and ignorance when it comes to using appropriate terms for discussing the LGBTQ community, and this can be offensive to an employee who associates with this community. LGBT(Q) is an acronym that stands for Lesbian, Gay, Bisexual, Transgender, and (Queer / Questioning). Gender Identity is a person’s inner concept as male, female, both or neither. Gender Expression is a person’s external appearance of gender identity expressed through clothing, voice, accessories, behavior, grooming, and hair. Such expression may either conform, or not conform, to socially defined behaviors associated with being male or female. Pansexual individuals have an emotional or romantic attraction to people regardless of their gender or gender identity. Agender or gender-nonbinary are people who do not identify with either gender. Gender dysphoria refers to the distress a person feels because their birth-assigned sex and gender do not match their gender identity. Sexual orientation is the inherent emotional, romantic, or sexual attraction to other people, such as gay, lesbian, or heterosexual.
Although federal law (Title VII) protects individuals from discrimination at work based on gender or sex, Title VII does not expressly prohibit discrimination or harassment based on sexual orientation or gender identity and expression. There is, however, federal guidance, such as from the EEOC and executive order, that gender should be interpreted broadly, and therefore considered a protected class, under the law to include gender identity and expression. New Jersey does find gender identity and expression, including transgender, and sexual orientation, as protected classes under the New Jersey Law Against Discrimination. Although the LGBTQ community has some legal protection in New Jersey, employers must be prepared to take action to ensure equal rights and equal access for all employees.
Here are some steps employers should take to ensure that LGBTQ employees can work in a safe, secure, productive work environment that is free of harassment, free of discrimination and in which all individuals can bring their “true selves” to work.
• Employers should permit LGBTQ employees to wear uniforms and to dress in accordance with their gender identity and expression.
• Employers must permit LGBTQ individuals to use bathrooms that conform to their gender identity or expression, without requiring “proof”; such bathrooms should not be segregated nor remotely located.
• Annual anti-harassment and anti-discrimination training and policies must cover and include males, females, and the LGBTQ community when discussing prohibited conduct. Sex stereotyping should also be included as prohibited conduct. Inclusive, appropriate, and current language should be used in such policies.
• HR forms can be modified to include male, female, and gender-nonbinary designations. HR should update policies so that individuals can update their names or gender identity/expressions with HR and on their employee ID, just as if they were updating their address or legal name.
• Employers must permit any individual to put their preferred pronoun below their title on their email.
• Recruitment and outreach efforts should be made to try to attract LGBTQ individuals to apply for jobs at an organization. Employers should use LGBTQ demographics and statistics in diversity and inclusion initiatives. Senior leaders should support LGBTQ organizations and issues.
• Organizations must create a culture where there is zero tolerance for harassment, retaliation, or discrimination based on gender identity or expression, including transgender.
• Employers can’t deny jobs or promotions and can’t fire an individual simply because they fall within LGBTQ demographics.
• Employers should consider offering equal benefits (i.e. – health insurance) to the LGBTQ community.
• Employers should learn the proper terminology surrounding LGBTQ individuals and use inclusive, non-discriminatory language in policies and all forms of communication.
• Employers can offer gender transitioning resources for employees. Finally, employers must be proactive in inclusionary efforts for the LGBTQ community.
The time is now to ensure that everyone, regardless of gender, gender identity or expression, is treated fairly, consistently, and with respect and dignity- especially when they are just trying to do their job!
Author: Nicole Croddick, Esq.