Q&A: How to Protect LGBT Workers (Where the Law Doesn't)

Office Workers

Ongoing legislative efforts to amend Title VII to prohibit LGBT bias in employment have been unsuccessful. And, according to Fisher & Phillips attorney J. Randall Coffey, it’s a tall order to overturn circuit precedent holding Title VII’s “sex” discrimination provisions don’t encompass bias based on sexual orientation or transgender status.

Private employers uncertain as to what’s protected by federal law (and what’s not) may take alternative avenues for promoting LGBT workplace rights. In a January 2016 interview with Bloomberg BNA, Coffey highlights a flurry of state and local legislation and proffers effective strategies for stemming discrimination and harassment and fostering diversity and inclusion.

Bloomberg BNA: At the state and local level, what legal protections now are available for LGBT employees?

Coffey: The protections vary tremendously both by state and by locality within certain states. Currently, seventeen states offer no employment discrimination protections for LGBT employees. The remaining states have a welter of laws that range from covering sexual orientation, gender identity and transgender status to covering only sexual orientation.

Some states have statutory or executive-directed protections only for public employees but have lesser or no coverage for private-sector employees. In addition, some states have incorporated statutory protections similar to those in the Religious Freedom Restoration Act at the federal level, which permit discrimination against LGBT employees in particular instances.

In short, an employer really will have to confirm the specific coverage under state and local law for each specific work location.

Bloomberg BNA: For employers, what are some do’s and don’ts in crafting nondiscrimination policies and educating employees on diversity and inclusion?

Coffey: Employers should evaluate the coverage of LGBT anti-discrimination provisions for all of their locations. Virtually all of the Fortune 500 companies and many smaller employers have opted for purposes of their nondiscrimination policies simply to provide broad coverage preventing LGBT discrimination as a matter of policy, regardless of the legal obligations.

It’s wise to include a provision stating that the employer doesn’t discriminate on “any other basis protected by law” as a catch-all provision. 

In terms of employee education relating to diversity and inclusion, companies should ensure that all of their employees are familiar with the company’s EEO, anti-discrimination and anti-harassment policies. 

Further efforts relating to diversity and inclusion in the workplace depend on the size of the employer, but the most effective diversity and inclusiveness efforts are ones in which top company management demonstrates a commitment to and interest in those efforts.  Education and training that doesn’t sound “preachy” and which demonstrates the benefits to the employer and the workforce of diversity and inclusiveness are the most effective presentations. 

There are a number of third-party providers who make very compelling presentations in this regard for a relatively low cost, as well as some pre-prepared and e-training programs that are quite well done. 

Bloomberg BNA: What are some tips for effectively managing conflicts between LGBT employees and other co-workers?

Coffey: I don’t believe that managing conflicts between LGBT employees and other co-workers most of the time are different than managing conflicts between co-workers generally. Part of handling such issues relates to communicating the employer’s values to all employees, particularly including the need for respectful exchanges and interactions between co-workers, even when there may be disagreements about subjects on which some employees have strong views.

It’s critical that employers let employees know that, while they are entitled to their own views on LGBT or other issues, the employer expects all employees to meet its standards of conduct in the workplace. 

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