Amid all that happened this summer, the U.S. Supreme Court’s ruling that forbids employers from terminating or otherwise discriminating against workers based on LGBTQ+ status (including both sexual orientation and gender identity) is among the most monumental.
“The Bostock v. Clayton County, GA decision is a watershed moment in Title VII jurisprudence, definitively holding that the prohibition against ‘sex’ discrimination in employment prohibits employers from discriminating against homosexual and transgendered individuals as well,” points out Amy Beckstead, partner at Beckstead Terry PLLC. “While most employers do the right thing already and do not base employment decisions on the sexual orientation or transgender status of an individual, this decision now provides individuals a remedy when employers do improperly discriminate on these bases.”
As HR Dive points out, the high court’s order is far reaching. While some states and locations (including the City of Austin) have already prohibited private employers from discrimination based on sexual orientation and gender identity, other states and locations did not have that prohibition, such as was the case in the Bostok v. Clayton County, GA lawsuit that went all the way to the Supreme Court.. And discrimination can be more than just an unlawful termination – any adverse employment action (demotion, failure to promote, failure to hire, etc.) can form the basis of a discrimination action under Title VII.
Does your work culture need work?
Even if you feel you have an inclusive culture, it could be unintentionally marred by unconscious bias and an assumption of disclosure. The truth is that LGBTQ+ individuals are more diverse and have more wide-ranging needs than you might assume.
A recent study by the consulting firm BCG and New York City’s Lesbian, Gay, Bisexual & Transgender Community Center shows that the LGBTQ+ workforce is far more racially diverse and more likely to include women, transgender employees, and people with more varied sexual orientations than in the past. Of the LGBTQ+ employees surveyed under age 35, 28% are people of color who identify as women, versus just 2% of those aged 55 or older. Additionally, 40% are closeted (not out) at work.
“Consequently, the diversity, equity, and inclusion programs in place at many companies, while beneficial, are no longer sufficient,” the study authors write. Assumptions and stereotypes that may be built into these programs can cause friction. About 75% of the LGBTQ+ study participants have reported experiencing negative day-to-day workplace interactions related to their LGBTQ identity in the past year.
Experts agree that issues as granular as pronoun usage, uniforms assigned to workers based on gender, and bathroom/locker room assignments may emerge as areas of discrimination or even harassment, although they’re not yet defined by federal guidance. The great news is that proactively looking at diversity and inclusion initiatives that address these potential day-to-day conflicts can go beyond merely staying legally compliant. They can boost recruiting and retention efforts, too.
Are your health benefits adequate?
Potential coverage issues can include those that may be categorically excluded, such as transgender individuals. Be aware of these nuances as you review your benefits. Even offering a health plan that limits sex-specific care or provides a network that doesn’t include doctors with expertise in gender-assignment issues could be problematic.
Infertility benefits may also need to be evaluated because they could inadvertently exclude LGBTQ+ employees. As Employee Benefits Advisor points out, infertility is one area where LGBTQ+ couples may be excluded from access because of the way infertility is defined. Typical coverage often includes couples diagnosed with infertility as defined by the Department of Health and Human Services, which is after one year of trying to get pregnant through regular intercourse, with no resulting pregnancy. This can, by definition, preclude LGBTQ+ and even single parents.
Disability coverage, employee assistance programs, Rx benefits, and more could also need updating, SHRM points out. The organization offers several checklists that may help you find and correct discriminatory language and practices throughout your benefit plans.
Diversity and inclusion have been critical initiatives for some time now. This recent ruling gives more legs to the importance of updating workplace policies and procedures.
“Ensuring individuals are treated with respect and dignity in the workplace is really a baseline, minimum standard all employers should have as an expectation of their workforce, regardless of whether it is required by law,” says Beckstead. “Employers would be wise to continue to focus on diversity and inclusion efforts – not for the sake of doing it – but because, if done properly, it builds a better company culture and ultimately a better-run company.”
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