Author: Beth Zoller, XpertHR Legal Editor
States and municipalities are increasingly passing laws to protect the rights of lesbian, gay, bisexual and transgender (LGBT) individuals in the workplace including making sexual orientation and gender identity protected classes.
Although not yet recognized as protected classes under federal law and Title VII, as a best practice, employers should prohibit discrimination and harassment against all employees and applicants based on their sexual orientation and gender identity.
Employers should also be sure to implement training and be prepared to make reasonable accommodations for LGBT employees when it comes to issues such as employee restrooms, name changes and dress codes.
Employers may face particular tasks, such as preventing same-sex discrimination in the workplace, managing transgender employees in the workplace, and eliminating sex stereotyping, when addressing the needs of LGBT employees in the workplace. The following XpertHR Tasks are available for consultation:
- Prevent Discrimination on the Basis of Sexual Orientation or Gender Identity
- Address Issues With Transgender or Cross Dressing Employees
- Combat Sex Stereotyping in the Workplace
Preventing discrimination against LGBT employees, properly dealing with their discrimination complaints and confronting more sensitive items such as appearance, bathroom and locker room use, are all issues that can arise for LGBT employees in the workplace. Step-by-step guidance for employers addressing these concerns is available through the following How Tos:
- How to Deal With a Complaint of Sexual Orientation Discrimination
- How to Prevent Discrimination Based on Sexual Orientation
- How to Prevent Discrimination Against Transgender, Transsexual or Cross-Dressing Employees in the Workplace
- How to Address Restroom and Locker Room Use by Transgender Employees
Supervisors on the job can greatly benefit from clear and direct guidance on the proper approach to confronting cases of discrimination against or harassment and bullying of LGBT employees. XpertHR offers the following Supervisor Briefings to assist:
- Sexual Harassment - Supervisor Briefing
- Discrimination - Supervisor Briefing
- Bullying and Harassment - Supervisor Briefing
Policies and Documents
Having a discrimination policy in place is essential to prevent all types of discrimination in the workplace, including discrimination against LGBT employees. XpertHR carries the below model policy:
Employment Law Manual
Understanding the broader legal rights and obligations (both federal and state) with regard to discrimination, harassment and retaliation is essential in devising a proper approach to LGBT employees in the workplace. XpertHR's Employment Law Manual provides comprehensive information and resources to help, available at the following links:
- EEO - Discrimination
- Employee Management Overview
- EEO - Harassment
- EEO - Retaliation
- Diversity and Inclusion in the Workplace
- Employer Liability for Discriminatory Termination
- Employee Handbooks - Work Rules - Employee Conduct
Many states and major municipalities have enacted legislation prohibiting discrimination against LGBT employees in the workplace and providing other protection and benefits for LGBT employees. XpertHR's handy Quick Reference chart details the application of these requirements.
Detailed legal analysis on gender identity, gender expression, and transgender status in the workplace and more robust discussion of particular pieces of legislation, such as California's Gender Nondiscrimination Act, are available to give employers a greater understanding of the applicable legal obligations:
- Gender Identity, Gender Expression and Transgender Status in the Workplace
- California Gender Nondiscrimination Act
Understanding the outcome of particular court decisions on same-sex harassment, sex stereotyping and transgender individuals in the workplace and what these decisions may mean for employers helps in crafting proper policies and protections for LGBT employees. XpertHR carries the below Law Reports to assist:
- EEOC Recognizes That Claims of Discrimination Based on Gender Identity, Change of Sex, and/or Transgender Status May Be Covered by Title VII
- Same Sex Harassment Can Be Discriminatory Under Title VII
- Gender Stereotyping Sexual Harassment Claim May Be Brought Regardless of Plaintiff's Sexual Orientation
- Pursuit of Same-Sex Harassment Cases Yields Mixed Results
Society and the law are rapidly changing when it comes to LGBTs in the workplace. The following blog post on XpertHR's Employment Intelligence Blog aims to explore such issues and educate readers as to recent events and emerging trends:
Best Practice Manual
The Best Practice Manual contains important information for employers on managing unique issues with respect to LGBT employees, preventing discrimination and harassment. It also contains a report which identifies the most friendly LGBT states and companies:
- What is gender expression?
- What does intersex mean?
- What is gender identity?
- What is the difference between transgender and transsexual?
- Is gender identity related to sexual orientation?
- What is the difference between sex and gender?
- What is a transvestite or cross-dresser?
Discrimination and Harassment
- Does federal law prohibit discrimination based on gender identity, gender expression, transgender status or sexual orientation?
- Should discrimination and harassment training address transgender status, gender identity and gender expression?
- Should an employer prohibit discrimination based on gender identity, gender expression, transgender status or sexual orientation?
- How should an employer handle employee complaints about gender identity or sexual orientation discrimination in the workplace?
- How can an employer create a diverse workforce and why should this be a goal?
- Can an employee's sexual orientation be part of the job requirement?
- Is a transgender or transitioning employee required to comply with the employer's dress code?
- How should an employer handle restrooms for a transgender employee?
- How should an employer handle an employee who is transitioning to a new gender?
Related Glossary Terms
- Gender Identity
- Gender Expression
- Sex Reassignment
- Sexual Orientation
- Sexual Harassment