For all the strides that the United States has made towards equal rights over the past century, there is still much further to go when it comes to LGBTQ+ discrimination in the workplace. Lesbian, gay, bisexual, transgender and queer folks still face numerous obstacles at their jobs, and in far too many places, their employers can discriminate with impunity. Currently, more than half of our states do not have laws that explicitly protect workers from discrimination regarding gender identity and sexual orientation.
How to address the obstacles LGBTQ+ employees will encounter at work will vary on a company’s nondiscrimination policy, as well as state and local laws. And, of course, it all hinges on the will of human resources and management to enforce their stated standards. It’s important to know the obstacles these workers face, and how to be a better ally to make the workplace more equitable for everyone.
More than half of our states do not have laws that explicitly protect workers from discrimination regarding gender identity and sexual orientation.
An LGBTQ+ nondiscrimination policy is imperative.
These protections in individual workplaces are especially important, given that 29 states do not have laws that explicitly protect workers from discrimination regarding gender identity and sexual orientation, according to the Human Rights Campaign. “If an employee experiences discrimination on the job and their company has a nondiscrimination policy on the basis of sexual orientation and gender identity, an employee has recourse to go to their HR and/or leadership team to note their concerns that their stated business values are not being upheld,” said Cathryn Oakley, J.D., state legislative director and senior counsel for the Human Rights Campaign.
If a company already has a nondiscrimination policy that includes sex, race and national origin, it can explicitly add sexual orientation and gender identity and expression to the policy, explained Christy Mallory, J.D., director of state and local policy at the Williams Institute at the UCLA School of Law.
Whether a company has an inclusive nondiscrimination policy or not, it’s important for LGBTQ+ workers to know that the U.S. Equal Employment Opportunity Commission has acknowledged it views discrimination on the basis of gender identity or sexual orientation as a form of sex discrimination, and it has enforced protection for LGBTQ+ workers under Title VII of the Civil Rights Act, regardless of the local and state laws.
In October 2019, the Supreme Court began hearing oral arguments in three cases that could determine whether protection from discrimination “because of … sex” meant to include gender identity or sexual orientation. SCOTUS is expected to rule on the matter in 2020.
There is no one definition of family, but not all workplace benefits reflect this.
Benefits coverage is one area where LGBTQ+ discrimination in the workplace can be really harmful.
According to the Kaiser Family Foundation, in 2017 (the latest year available), 49 percent of Americans received their health insurance through their employer. Alas, not all health coverage plans cover all employees’ families equally, and some plans do not adequately address transgender healthcare needs, like transition-related healthcare, said Mallory.
Other employee benefits, such as bereavement leave, should also be equitable for all employees. “If a heterosexual couple could take off time for a partner’s loss of a family member, for example, a same-sex couple [should] have that same [benefit],” Mallory explained.
Managers need to make specific policies within their benefits packages clear to LGBTQ+ employees. This information should be readily available so that people who may not want to disclose their status during the hiring process or at work can still access information without being the ones to have to bring it up. Access to this information should be equitable.
The threat of co-workers violating each other’s privacy rights.
Every single LGBTQ+ person should be allowed to disclose their identity to other people, including their co-workers, on their own time.
Some employees never “come out”: A study by the Human Rights Campaign Foundation in 2008 found that 46 percent of LBGTQ workers said they were closeted at work. Therefore, an important component of a good nondiscrimination policy is the protection of an employee’s privacy as it may relate to a same-sex partnership, a gender transition or a gender reassignment surgery.
An employee might confidentially inform human resources or management about those matters, and they have every expectation that the information be kept private. Companies should ensure “that there’s a policy in place for when an employee transitions on the job and how to make sure that that person is comfortable and accommodated and that, at the same time, their privacy rights aren’t violated,” explained Mallory.
Microaggressions and inappropriate comments create a hostile work environment.
Bigoted, rude and puerile comments about sexual orientation or gender identity are one of the most common forms of LGBTQ+ discrimination in the workplace. In fact, the 2008 study by the Human Rights Campaign Foundation found that 53 percent of LGBTQ+ workers reported hearing jokes about lesbian or gay folks every once in awhile.
It’s not at all surprising, then, that according to the Human Rights Campaign’s 2009 report “Degrees of Equality: A National Study Examining Workplace Climate for LGBT Employees,” some employees felt forced to hide their identity at work. That report found that in the past 12 months, 42 percent of the LGBTQ+ employees surveyed said they had to lie about their personal life, 27 percent avoided social events and 12 percent avoided certain people.
In some cases, these inappropriate comments and so-called “jokes” may constitute harassment (i.e. hostile work environment), and this behavior should be addressed in a nondiscrimination policy as well.
It’s important for management, as well as allies, to speak up when inappropriate comments are being made (even if they don’t have any enforcement capacity) to address this form of LGBTQ+ discrimination in the workplace. While a simple “That language is hurtful” or “That’s inappropriate” may shut down behavior in the moment, the Southern Poverty Law Center, a nonprofit dedicated to civil rights, also has numerous scripts for how to address all types of bias in the workplace, over email and at social gatherings.
Company dress codes can reinforce stereotypes about gender expression.
Employers have the right to create a dress code or grooming guidelines for their employees. For example, educators, flight attendants and waitstaff may have to wear uniforms or follow certain guidelines about what style of clothes or colors they can wear.
When such guidelines exist, it’s important that they are inclusive of all employees and their gender expression. The Human Rights Campaign advises that dress codes “should be modified to avoid gender stereotypes and should apply consistently to all employees,” and that transgender employees should be allowed to dress in accordance with their gender identity.
Even in the absence of guidelines, employees may have their gender presentation policed by colleagues. In fact, one in five LGBTQ+ workers said they have been told, or have had coworkers imply, that they should dress in a more “feminine” or “masculine” manner, according to the Human Rights Campaign’s “A Workplace Divided: Understanding the Climate for LGBTQ+ Workers Nationwide” report. Comments like these are inappropriate, and HR should have protocols for dealing with them if they arise.
Bathrooms are still largely exclusionary.
Bathroom inclusivity is a sign of respect for employees. An ideal workplace nondiscrimination policy will stipulate that transgender or gender nonbinary employees “can use the restroom that aligns with their own gender identity, and they’re not forced to use a restroom that doesn’t align with their gender identity,” said Mallory.
The policy should also explicitly state that these employees should not be required to use a single-use restroom at the workplace when other employees are permitted to use a group restroom.
Yes, pronouns matter.
Transgender or gender nonbinary employees may request the use of specific pronouns, including the non-gender-specific “they/them.” You can learn more about the importance of pronoun use in this guide by the HRC.
“He,” “she” or “they” may seem like small words — but being misgendered in the workplace is not a small matter at all. A good nondiscrimination policy in the workplace should clarify that an employee should be referred to by the name and pronouns to which they identify, said Mallory.
The Human Rights Campaign suggests workplaces create a space on job applications where the applicant can state their pronouns. That would indicate to all job-seekers that a workplace cares about referring its workers by the correct pronouns, and also makes it possible so the interviewer can identify the applicant correctly going forward. Employees may also want to include their pronouns in their email signature lines to indicate to other colleagues and clients how they would like to be addressed.
You can learn more about nonbinary inclusion in the workplace from this “Best Practices For Non-Binary Inclusive In The Workplace” guide by Out & Equal, a nonprofit dedicated to LGBTQ+ workplace equality.
Overcoming obstacles is a joint effort.
“It’s important that employers really step up and show that they value their LGBTQ+ employees and customers and that they’re going to do what they can to make sure that workplaces are inclusive and made comfortable for them,” said Mallory.
There’s so much to be gained from being inclusive to all employees and not allowing LGBTQ+ discrimination in the workplace. When employees feel like they are respected for being themselves, and are not worried about matters like benefits coverage or their own safety, they can focus on doing their best work.
And this, of course, reaps benefits for the companies. “Through HRC’s annual Corporate Equality Index, which rates LGBTQ+ equality in the workplace, we have seen widespread education and adoption of inclusive LGBTQ+ workplace policies and practices among the nation’s largest employers,” said Oakley in an email. “These businesses are leading the way in workplace diversity and inclusion for LGBTQ+ workers and have fundamentally changed the employment landscape by affirming that equality is good for the bottom line.”
Jessica Wakeman is a journalist who focuses on women’s social, cultural and political issues. Her work has appeared in Bitch, Bust, Bustle, Glamour, Rolling Stone, The Cut, The New York Times and numerous other publications. You can read her work here.