Author: Beth P. Zoller, XpertHR Legal Editor
Even though it is not explicitly stated under Title VII, the Equal Employment Opportunity Commission (EEOC), many federal courts and a significant number of state and municipal laws consider gender identity and sexual orientation to be protected classes. Thus, it is best practice to prohibit discrimination against individuals identifying as lesbian, gay, bisexual or transgender (LGBT). It is also important for an employer to be aware of issues affecting LGBT individuals and provide reasonable accommodations when it comes to rest rooms, dress codes, name changes, etc. An employer should also be particularly sensitive to the needs of LGBT individuals who may be transitioning or undergoing sexual reassignment surgery.
The following are steps an employer can take to manage individuals who may identify as LGBT.
1. Develop, Implement and Enforce Discrimination Policies
It is best practice for an employer to develop, implement and enforce strong policies prohibiting discrimination, harassment and retaliation based on sexual orientation and gender identity. Thus, an employer should consider revising its equal employment opportunity (EEO), discrimination, harassment and retaliation policies to include gender identity and expression and sexual orientation as protected categories. LGBT individuals should be treated fairly in all aspects of employment including recruiting and hiring, pay and promotion, training and development, discharge and discipline. Employment decisions should be based on merit, skills and qualifications. The policies should also set forth a multi-channel reporting procedure allowing employees and supervisors to bring written or verbal complaints to various members of management or even an employee hotline. Such policies should be included in the employer's employee handbook and communicated to all employees and supervisors.
2. Train Employees and Supervisors
Training both employees and supervisors on discrimination, retaliation, harassment and bullying against LGBT employees is essential. An employer should warn employees and supervisors to avoid the use of stereotypes and offensive language, jokes and slurs against LGBT individuals. Further, training should review the appropriate terminology when it comes to LGBT individuals and aim to create a diverse and inclusive workplace. The training should review what constitutes unacceptable behavior and direct all employees to treat colleagues with dignity and respect. It may also be appropriate for an employer to provide additional training to the colleagues of an employee who is transitioning or undergoing gender reassignment surgery so that they can be particularly sensitive. Comprehensive training, specifically with respect to supervisors, can be essential to minimize the risk of employer liability.
3. Take Complaints Seriously and Investigate Them
An employer should firmly commit to taking all complaints of discrimination, harassment or retaliation based on LGBT status seriously and promptly investigating them. Employees and supervisors should be provided with assurances that they will not be retaliated against for bringing a complaint and that the complaint will be kept confidential to the greatest extent possible. An employer should conduct a thorough investigation by reviewing any evidence and documents and interviewing the complainant, the alleged perpetrator and any potential witnesses. The employer should be sure to document the entire investigation process and the steps taken in response to the complaint. An employer may want to consider implementing interim measures such as separating the complainant from the alleged perpetrator during the course of the investigation. Lastly, the employer should follow up with any remedial and/ or disciplinary measures, if warranted.
4. Provide Reasonable Accommodations
An employer should be prepared to provide LGBT individuals with reasonable accommodations when it comes to issues such as restrooms, locker rooms, dress codes and name changes. An employer should permit all employees and third parties to use the restroom or locker room that corresponds with their current gender identity and presentation regardless of the individual's sex at birth. Single-occupant, gender-neutral restrooms may provide increased privacy for all individuals. If an employer maintains multi-occupant restrooms with stalls, it may want to consider additional privacy measures such as stall doors and dividers. If another employee is uncomfortable with an LGBT individual using a particular restroom, that employee should be permitted to use another facility. Additionally, an employer should be prepared to provide reasonable accommodations with respect to dress codes and permit an individual to dress consistently with his or her gender identity as long as the individual looks professional and appropriate for the particular workplace and position. This also applies to uniforms, grooming, jewelry and makeup.
5. Provide Support to Transitioning Employees
An employer should be particularly sensitive and provide complete support to transgender employees who are transitioning and/or undergoing gender reassignment surgery. An employer should make sure to discuss crucial issues such as name changes, changing employee records, restroom use and dress code and any change in duties or responsibilities or potential transfer. The employer should also discuss any time off that the employee may need for treatment, as well as how co-workers and third parties will be advised of the change. The employer may want to retrain the employee's co-workers in order to prevent discrimination and enhance sensitivity and awareness. An employer should aim to keep all discussions private and confidential and make sure to provide the appropriate support and assistance.