Keep Policies for LGBT Employees Up-to-Date

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By Hassan Kanu

June 22 — The U.S. is a “little conflicted” about LGBT issues, which is reflected in the range of policies seeking to regulate employers' treatment of lesbian, gay, bisexual and transgender workers, according to management-side attorney Kelly Bunting.

Between federal legislation, federal agency guidance, state laws and states suing and “trying to pass laws to stop federal legislation,” large companies or those with employees scattered around the country are often unclear about how to conform their policies to the law, or even which laws they're required to comply with, Bunting, a shareholder at Greenberg Traurig, told a conference session June 21.

Nonetheless, it's imperative to stay abreast of developments and update employee handbook policies to conform—as much as possible—with current federal and state legislation.

Bunting noted that North Carolina, Mississippi, Missouri, Utah and several other states have recently passed employment laws regarding LGBT workers.

On the federal side, public employers and federal contractors should keep track of Executive Orders 11,478 and 13,672, which ban bias on the basis of sexual orientation as well as gender identity.

Equality Act and Private Employers

Private employers should keep an eye on the Equality Act, a bill that would extend those policies to them via amendments to Title VII of the 1964 Civil Rights Act. “Pay attention to it because this is the face of the future,” Bunting said.

“It'll probably sit until we elect the next president, and if we have a Democratic president, it'll probably get passed, if we have a Republican, it probably won't, and depending also on who has a majority in Congress,” she said.

Although federal agency guidance isn't law per se, employers should keep an eye on that area as well, Bunting said, noting that courts give deference to guidance from the Equal Employment Opportunity Commission.

“The EEOC has actually announced that they are going after states that don't have their own LGBT protection laws, so if you're in one of those states, they're targeting companies and looking for cases to bring,” Bunting said.

Employers also should follow those cases in which the EEOC sues on behalf of an LGBT employee and should generally stay abreast of guidance from the Labor Department and the National Labor Relations Board and their state equivalents, Bunting said.

Policies and Training

Bunting said employers should take the following approaches to updating policies:

  •  Update them regularly to conform with applicable federal, state and local law. “Don't just stick in LGBT with your other anti-bias policies and think you're good,” Bunting said, and “at least review them twice a year.”
  •  Make them readily accessible—post them online, on walls. This is “one of your defenses if anyone sues,” she said.
  •  Provide notice of changes. “Don't assume employees are aware” of the update and obtain signed acknowledgement.

The Transgender Law Center, Out and Equal and the Mazzoni Center have sample policies on their websites that employers can use as a framework for their own handbooks, Bunting said.

She also provided guidance on training, saying employers should:

  •  conduct it—preferably live—at least once a year for managers and at least once every two years for non-managers;
  •  explain basics of anti-bias laws and have an attendance sheet and acknowledgement form;
  •  reinforce “no retaliation” policies and explain personal liability and duty to report; and
  •  “make managers accountable for compliance” through performance evaluations or bonus/compensation incentives.

Bunting was speaking at the Society for Human Resource Management Annual Conference and Exposition.

To contact the reporter on this story: Hassan Kanu in Washington at

To contact the editor responsible for this story: Tony Harris at

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