WPA in the News

New Trend: Businesses Adopt GLBT Policies

February 7, 2007

“Employers that proactively establish diversity programs and comprehensive training initiatives for all employees and supervisors may be less vulnerable to lawsuits and punitive damages. A single highly-publicized discrimination lawsuit can affect an organization’s reputation, the morale of its employees and its perception among job candidates for many years in the future.”
– Lynn D. Lieber, Esq.

As more and more Americans are finding the confidence to “come out” of the proverbial “closet” as their true transgendered selves, American workplaces are finding it necessary to create policies not only for the equal employment of such individuals, but also for the legal protection of the employer.

A relatively new trend. Many well-known and respected U.S. corporations are increasingly adopting non-discrimination policies that make life easier in the workplace for gay, lesbian, bisexual and transgender (GLBT) employees. However, this was not always the case. Less than a decade ago, no major U.S. corporation had enacted a policy that banned discrimination based on gender identity and expression—how employees are expected to look, act and dress because they are male or female. On September 19, 2006, the Human Rights Campaign (HRC), a Washington-based gay rights advocacy group, released a report showing that a record number of the largest U.S. companies are increasingly competing to expand benefits and protections for their GLBT employees—a number which has grown tenfold in the last four years.

Because of the fast-growing trend of organizations recognizing the particular needs of GLBT employees, CCH, a Wolters Kluwer business, conducted an interview of Lynn D. Lieber, Esq., employment law attorney and CEO of San Francisco-based Workplace Answers. The questions presented to Ms. Lieber are listed below along with her responses.

The interview

CCH: What responsibility do employers have to GLBT employees in the workplace?

Lieber: Employers have an increasing legal liability, but also have a moral and social obligation. Many GLBT employees have been ostracized from the corporate world, choosing to work at non-profits or social service organizations where they are more readily accepted. A large and growing segment of the U.S. population is GLBT and employers need to have workforces that accommodate all employees and reflect the composition of their customer base.

CCH: Would employers be wise to conduct some sort of sensitivity training with employees?

Lieber: Absolutely! GLBT and GI&E (gender identity & expression) are the final frontiers in the workplace in terms of mis-conception and ignorance. Employers should provide communication and diversity training regarding transgender issues in the workplace comparable to their other policy announcements and training initiatives. If an organization provides training regarding sexual or unlawful harassment and diversity, GLBT and GI&E should be included. More specific training should be provided for board members or employees and managers who work with GLBT employees, especially those who are transitioning.

CCH: What should a workplace policy cover in regards to GLBT employees?

Lieber: Employer’s equal employment opportunity and anti-harassment policies should be updated to include “sexual orientation” and “GI&E” as protected classifications. This sends a strong, positive message that all employees, including GLBT employees, are respected, valued and protected in the workplace. Employers should also create gender-neutral dress codes to prevent sexual stereotyping and uniformly enforce such codes except where to do so would create a safety issue.

CCH: Should employers be concerned about discrimination claims being brought by disgruntled GLBT employees even though they are not a protected class?

Lieber: Yes. Gender identity and expression (GI&E) discrimination is currently prohibited by only eight states: California, District of Columbia, Maine, Minnesota, New Mexico, Rhode Island, Vermont and Washington. Additionally, hundreds of municipalities have laws or policies that bar anti-GLBT discrimination.

There is also proposed federal legislation—the Employment Non-Discrimination Act (ENDA)—which would bar employers from using a person’s sexual orientation as the basis for employment decisions, including hiring, firing, promotion or compensation. The proposed legislation does not contain provisions that protect transgender and intersex individuals from discrimination, although many argue that it should.

Currently, 14 states—California, Connecticut, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington and Wisconsin—prohibit discrimination in employment based on sexual orientation.

Lawsuits and claims filed by GLBT employees and rejected job applicants are increasingly in the news. Such cases exact a heavy price on organizations in time, legal fees and reputation. Employers that proactively establish diversity programs and comprehensive training initiatives for all employees and supervisors may be less vulnerable to lawsuits and punitive damages. A single highly-publicized discrimination lawsuit can affect an organization’s reputation, the morale of its employees and its perception among job candidates for many years in the future.

CCH: What are the benefits of supportive GLBT practices in the workplace and what are the costs?

Lieber: Implementing workplace protections for GLBT employees and enhancing their benefit packages not only makes the workplace more respectful to those employees, but it makes good business sense as well. There is increasing competition among organizations to offer the same protections and benefits to GLBT employees as other employers in their industry. In certain business sectors, such as financial services and technology, there is substantial competition.

Many organizations are realizing that the GLBT community has huge buying power (estimated at $641 billion dollars a year) and that having a workforce that reflects the demographics of society can have significant financial benefits. Finally, employers are rapidly discovering that GI&E-friendly policies, protections and benefits are important tools for recruitment, employee job satisfaction and retention for all employees.

The costs of making the workplace GLBT and GI&E friendly are relatively minimal when balanced with the substantial financial and workplace benefits from enacting such policies. The largest “cost” would be providing domestic partner benefits to employees’ partners. Employers can accommodate employees who are transitioning through one-on-one discussions with the affected employee, education to coworkers and restroom procedures. There is not much cost associated with this process, except perhaps attorneys’ fees for legal consultation on how to handle the situation.

CCH: What types of benefits might an employer offer GLBT employees that it cannot or does not offer other employees?

Lieber: There are three particular types of benefits that a GLBT employee would greatly benefit from:
1. Extend benefits to transgender employees. Employers can modify health- or disability-related leave policies to allow transgender employees to take leave associated with medically necessary treatments and procedures. Removing “transgender exclusions” from health insurance policies may be administratively difficult, but employers can modify their internal policies.
2. Offer Domestic Partner benefits. Providing Domestic Partner benefits demonstrates an organization’s commitment to GLBT employees. If such benefits are offered, employers should implement them with the same provisions as those offered to married couples.
3. Provide other benefits uniformly. Any benefits the employer offers to heterosexual couples should also be offered to GLBT couples. These could be such things as employee discounts and invitations to outings or events.

CCH: Are there any risks associated with offering GLBT employees benefits that other employees are not offered?

Lieber: The only benefit that might be extended to GLBT employees and not to the general employee population are health benefits and leave of absence opportunities GLBT employees might need to have medical procedures and treatments. Since employers grant medical benefits and leaves for other types of medical conditions this is not likely to be problematic. Most other benefits would apply equally to heterosexual and GLBT employees.

CCH: Should (and if so, how) employers encourage GLBT co-workers to be empathetic to the GLBT employee?

Lieber: Yes. Having a gender identity that does not match your physical gender can be exceptionally difficult and painful. Many coworkers believe that transgender individuals have a “choice,” choosing to live life as another gender. However, the large majority of transgender individuals have felt they were “born into the wrong body” from the time they were small children, even toddlers, and feel they have no “choice” in the matter.

Some individuals who feel they are born the wrong gender “transition” genders either by having a sex change operation or living their life as the gender they identify with. Since this is usually done publicly, it can be embarrassing and humiliating to the individual. There is much misinformation about—and prejudice against—transgender individuals. Some individuals who transition report that they were so unhappy living their life as the wrong gender that they felt they could either transition or that they would take their own life rather than live in another’s body. Obviously, transitioning is a very challenging process that most people would not undertake unless they felt it was absolutely essential.

Additional tips for managing GLBT in the workplace

Teach correct terminology. Use of correct terminology is very important when working with GLBT employees. An individual who is “transgender” should be referred to as “a trangender person” or “transgender,” but not “a transgender.” “Transvestite” is a derogatory term that commonly refers to a transgender or transsexual person. “Intersex” individuals are often incorrectly termed as “hermaphrodites”—also a derogatory word. Intersex is a condition where an individual is born with external genitalia or an internal reproductive system that is not considered “standard” for either male or female. In these situations, doctors usually “assign” the person a gender (usually at birth) and might reinforce the assignment with hormones. Individuals who feel their gender was wrongly assigned are often withdrawn, depressed and sometimes suicidal.

Establish transition guidelines. Many workplace issues can arise regarding a transitioning employee that can be alleviated with straightforward procedures and education. Some issues that should be addressed are:

• Who in the organization is responsible for handling workplace issues regarding the transitioning employee?
• What is the timetable regarding the workplace transition?
• What workplace changes need to occur and by what date(s)?
• What adjustments to personnel and administrative records are required and when?
• What will be communicated to coworkers and third parties regarding the transition?

Change personnel and administrative records. Employers should develop procedures for addressing situations in which an employee’s gender expression does not match certain official identity documents.

Grant restroom access according to an employee’s full-time gender presentation. Organizations should permit an employee to use restrooms that correspond to his or her full-time gender presentation, regardless of what stage that individual is in terms of their transition process. Employers should permit use of facilities by any individual without infringing on the privacy of other users. Restroom stalls with locking doors can fulfill this requirement. Some employers choose to install a single stall unisex restroom that can be used by either the transitioning employee or their coworkers.

Ensure employee privacy. Treat an employee’s transgender status as private and confidential. Employers are required by federal law (the Privacy of Personal Health Information and the Health Insurance Portability and Accountability Act) to keep employee medical information confidential.

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