Many businesses' employee handbooks contain an anti-discrimination policy. But when was the last time you updated your handbook? Does it reflect the current state of your workplace? Is it consistent with current laws?
Two-thirds of employers have anti-discrimination policies that cover LGBTQ employees, and 6 percent plan to adopt such policies. Including LGBTQ anti-discrimination policies not only helps keep you legally compliant but also enhances your business by promoting workplace equality and cultivating a reputation of inclusivity.
What Does the Law Say About LGBTQ Protections?
Under Title VII of the Civil Rights Act, an employer can't treat an applicant or employee unfavorably based upon that person's sex. The courts continue to debate whether Title VII's protections include sexual orientation, gender identity, transgender status and/or gender expression. The Equal Employment Opportunity Commission (EEOC), which interprets and enforces the provisions of Title VII, has taken the position that sex discrimination prohibits employment discrimination that's "based on gender identity or sexual orientation." These protections apply despite the presence of opposing state or local laws.
The EEOC may take enforcement action against employers who:
- Deny employment or promotion to someone because of their sexual orientation or gender identity
- Intentionally fail to use the name and gender pronouns that correspond to the individual's identity
- Limit transgender employees from using common facilities that align with their gender identity
In addition to federal legislation, you should also know your local anti-discrimination laws. Many states and municipalities have issued laws or court opinions regarding discrimination on the basis of gender identity or sexual orientation. These laws may differ from federal law, and you will need to be in compliance with all laws that apply. Check with your legal counsel if you need guidance regarding circumstances pertaining to your business if you're located in such jurisdictions.
OSHA Guidance on Restroom Usage
In 2016, the Occupational Safety and Health Administration (OSHA) published a best practices guide on employee restroom access. The core principle of this guidance is that "[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity."
According to OSHA, the best policies provide additional options, including:
- Single-occupancy gender-neutral (unisex) restrooms
- Multiple-occupant gender-neutral restrooms with lockable individual stalls
It's important to remember that gender-neutral bathrooms are an additional option that may increase the comfort of transgender employees. However, transgender employees cannot be exclusively relegated to gender-netural bathrooms. OSHA guidance and best practice is to permit employees to use bathrooms that correspond to their gender identity.
What Constitutes an Effective Anti-Discrimination Policy?
To be effective, an anti-discrimination policy must have the following components:
- Definitions of protected statuses, including sex, transgender status, gender identity, sexual orientation and any other protected characterisic as set forth in applicable jurisdictions
- A list of examples of what could be considered harassment
- Complaint procedures, including contact person, plus post-complaint investigation procedures
- Prohibition of retaliation against any employee making a complaint or participating in an investigation or legal proceeding
- A statement that the employer may take disciplinary action, up to and including termination, if investigation reveals that harassment occurred
Training in the Workplace
Compliant policies won't work without training your employees on what constitutes harassment and how to prevent it. Effective anti-harassment training may help prevent workplace discrimination and can help you demonstrate that your company is serious about enforcing federal, state and local rules. Some states — including California, Connecticut, Maine and New Mexico — have laws that require certain employees to attend mandated sexual harassment training.
Your employees will be happiest and do their best work when they feel included and supported. Don't wait to begin reviewing your employee handbook and your business's fundamental policies and procedures.