How should an employer handle employee complaints about gender identity or sexual orientation discrimination in the workplace?

Although gender identity and sexual orientation are not yet protected classes under Title VII, employers should be mindful of state and local laws that extend anti-discrimination provisions to gender identity and sexual orientation.

However, it is a best practice of any employer to eradicate discrimination of any kind against individuals in a particular group and have a policy in place prohibiting such discrimination.

Therefore, when faced with an employee complaint about gender identity or sexual orientation discrimination, an employer should do the following:

  • Swiftly, fairly, comprehensively, and confidentially investigate any complaint of discrimination;
  • Assure the reporting employee that he or she will not be retaliated against;
  • Interview the complaining employee, the accused and any potential witnesses;
  • Take clear notes regarding all relevant facts (including names, dates, times, and places).

An employer should a) try to avoid making make assumptions about the employee's truthfulness or otherwise reach conclusions before the end of the investigations, b) record more than the facts as relayed, or - above all - c) decide not to investigate.

An employer should generally follow the same procedures used in other investigations.