By Attorney Beth P. Zoller
Special to THELAW.TV
In the past two decades, the U.S. has become increasingly inclusive in providing protections and benefits when it comes to lesbians, gays, bisexuals and transgender (LGBT) individuals in the workplace. On a political level, the Defense of Marriage Act (DOMA) has been declared unconstitutional, which has given the green light to individuals who reside in states that recognize same-sex marriage to receive federal benefits. Almost a third of the states now prohibit employment discrimination based on sexual orientation and/or gender identity. Additionally, there continues to be a push on the federal level, in the U.S. Congress and by the EEOC, to recognize sexual orientation and gender identity as protected classes. These changes have led individuals to become more open about their sexuality in general, as well as in the workplace.
As a result, there are unique considerations employers should be aware of when managing LGBT individuals:
Step 1: Handle Dress Codes and Appearance Policies in a Sensitive Manner
Employers need to know how to handle dress codes, as well as appearance policies, with respect to grooming, jewelry, makeup, and facial hair and know that certain issues may arise when it comes to LGBT employees. While all employees should be required to dress in a professional manner appropriate for the workplace, a female employee should not be criticized or disciplined because she is not dressed in a feminine enough manner. Similarly, a male employee should not be disciplined for dressing too flamboyantly. Employers should never require employees to dress in the manner considered consistent with their biological sex and should permit individuals to dress consistent with their gender identity. Employees should be made to feel comfortable and the employer should be flexible enough to allow reasonable accommodations to the employer’s policies especially with regard to transgender individuals, cross-dressers, and individuals who are in transition.
Step 2: Treat Employees in Same-Sex Relationships Equally
Unique issues arise when managing employees in same-sex relationships, whether such relationships are domestic partnerships, civil unions, or same-sex marriages. Employers should take note of the state that the couple resides in and check to see the legal coverage with regard to recognition of same-sex relationships, as well as benefits and leave for same-sex partners. Even if an employer’s state does not require it, it may be best practice for an employer to afford all committed relationships — opposite sex or same-sex — equal treatment in terms of recognition, family and medical leave, bereavement leave, benefits, etc.
Step 3: Curb Discrimination, Harassment and Unlawful Stereotypes
Regardless of whether an employer’s own state law prohibits sexual orientation and gender identity discrimination, it is critical to eliminate discrimination, harassment, bullying, and negative stereotypes against LGBT individuals. Discrimination and harassment can often come in subtle forms, such as jokes and name calling, as well as offensive images and emails. Employers need to ensure that they create a diverse workforce in which all individuals are treated equally and with respect and make sure to enforce the employer’s discrimination and harassment policies. Employers should avoid unlawful stereotypes when it comes to assessing an individual’s ability to take on a particular duty or task and value each employee based on their own merit, ability and performance. Lastly, all sexual orientation and gender identity complaints must be taken seriously, including a thorough investigation and following up with disciplinary measures if warranted.
Step 4: Allow Reasonable Accommodations Regarding Restrooms and Locker Rooms
Employers should be prepared to allow reasonable accommodations when it comes to restrooms, locker rooms, and changing rooms and permit all employees, regardless of their sexual orientation or gender identity, to use the restroom or locker room that corresponds with their full-time gender identity and presentation. An employee should not be required to use the restroom or locker room of his or her biological sex especially if the employee is transgender or transitioning. If a co-worker feels uncomfortable, an employer may want to consider implementing privacy measures such as stall doors and dividers to allow greater privacy for all employees. If a problem still persists, the complaining individual should be allowed to use another facility, if possible. Insisting that an LGBT employee use a separate facility could expose the employer to a possible discrimination claim.
With these steps, implemented in good faith, a workplace will be well-positioned to be considered an LGBT-friendly employer.