A New Year's Resolution: Tips for Avoiding the Potential for Future Discrimination Claims Under ENDA

Natalie Hrubos, Esq. on 01/07/2010

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            With the federal Employment Non-Discrimination Act (ENDA) gaining support and moving through Congress, this New Year may bring the addition of sexual orientation and gender identity to the list of protected categories in federal employment discrimination law.

            Despite many lesbian, gay, bisexual, and transgender (LGBT)-inclusive state and local anti-discrimination laws, no current federal law expressly protects employees experiencing discrimination because of their sexual orientation or gender identity. ENDA would resolve this disparity by prohibiting employers with fifteen or more employees from using a person’s sexual orientation or gender identity as the basis for adverse employment action.

            With ENDA on the horizon (and many state and local laws at the doorstep), employers should prepare now for the new workplace protections.  Committing to the following New Year’s Resolutions will help businesses eliminate anti-LGBT bias in the workplace ahead of time and avoid costly discrimination suits in the future.

Resolution No. 1: Educate yourself

            Eliminating anti-LGBT bias in the workplace requires employers to first educate themselves about the ways in which prejudice affects LGBT people’s employment experiences and opportunities.

            Prejudice against LGBT people often stems from the belief that LGBT people’s gender or sexual identities are, in some way, abnormal, invalid, or otherwise inferior to non-LGBT people’s identities.  Workplace exchanges often reflect these views, creating a negative work environment for LGBT employees.

            Unfortunately, both managers and co-workers verbally express their anti-LGBT bias in many different ways.  While overtly homophobic or transphobic comments continue to affect LGBT people’s employment experiences, employers must also prepare to identify and address the more subtle expressions of prejudice.

            For example, using inappropriate language to refer to LGBT people and their experiences reflects prejudice and negatively affects LGBT employees.  Using inappropriate language includes affirming stereotypes or misconceptions about LGBT people, using inappropriate pronouns to refer to a transgender person, and asking inappropriate questions about LGBT people’s personal lives and bodies.

            Employers should also educate themselves about the ways in which straight relationship and/or cisgender privilege affects LGBT people’s lives and, more specifically, their employment experiences. 

            For example, cisgender individuals enjoy gender privilege because they can freely access appropriate restrooms without others questioning the validity of their gender identity or challenging their right to access a gendered space.  When cisgender employees express “concerns” about transgender employees’ restroom access, they exercise their gender privilege in a way that significantly affects transgender people’s employment experiences and opportunities.  The term “cisgender” describes people who are not of transgender experience.

            By first understanding how prejudice and privilege manifests in workplace exchanges, policies and practices, employers can more effectively address bias against their LGBT employees and create a more inclusive work environment.

Resolution No. 2: Create resources for LGBT employees

            Many LGBT employees worry that identifying openly at work as LGBT will negatively affect their employment experiences and opportunities.  Creating resources for LGBT employees can help address some of their concerns and also affirm the organization’s commitment to fostering an LGBT-inclusive work environment.

            Employers should update policies to prohibit discrimination and harassment based on sexual orientation and gender identity.  These policies should clearly set forth the process by which LGBT employees can report mistreatment, harassment, or other workplace concerns.  Most importantly, the policies should also identify the human resource responsible for addressing concerns raised by LGBT employees.

            Additionally, employers should prepare and internally publish responses to questions and concerns that LGBT employees frequently raise.  For example, companies should create resources that provide detailed information about medical coverage for transition-related healthcare; health benefits for employees’ same-sex partners and spouses; and family and medical leave benefits specific to LGBT employees.

            Employers should also develop resources to help transgender employees overcome the challenges associated with workplace transitions.  For example, companies should streamline and then publish the process by which transgender employees can promptly correct their administrative records, business cards, name badges, directories, email addresses, and other systems or sources of identity information. 

            Because ENDA protects all gender variant and gender non-conforming people, employers should, whenever feasible, modify resources that reflect the view that gender is binary.  For example, employers should create a gender-neutral dress code policy that clearly states that all employees should feel comfortable dressing in a manner that reflects their gender identity regardless of their assigned sex at birth.

            Employers might also publish the locations of any gender-neutral or single-stall restrooms, if any, for the convenience of employees who feel most comfortable using those types of facilities. 

            Developing resources that address the unique needs of LGBT employees demonstrates an employer’s commitment to improving LGBT people’s employment experiences and opportunities.

Resolution No. 3: Develop tools to deal with bias against LGBT employees

            Eliminating bias in the workplace involves both raising awareness about the issues and preparing managers to appropriately address concerns as they arise.  Building a toolkit can help employers achieve both of these objectives.

            To begin, employers should incorporate LGBT-specific issues into any discrimination, harassment, or general diversity training for new hires.  Trainings should not only provide concrete examples of workplace exchanges that reflect anti-LGBT bias, but also offer meaningful advice on how employees can detect and address their own biases.

            Supervisors should also receive extensive training on identifying and treating workplace exchanges that reflect bias against LGBT people.  Employers should further train supervisors on how to appropriately handle questions and concerns raised by LGBT employees as well as issues raised by co-workers that may affect LGBT people’s employment experiences.

            For example, an employee may complain to her supervisor (and perhaps to her co-workers) that she feels uncomfortable when another employee discusses his relationship with a same-sex partner.  To appropriately handle her complaint, the supervisor must possess the tools necessary to both address the biased attitude of the co-worker and to minimize any harm that may result from her biased attitude.

            Additionally, to ensure consistently fair and appropriate treatment company-wide, employers should provide supervisors with guidelines for handling many LGBT-specific workplace matters likely to arise.

            For example, a transgender person’s ability to obtain official documentation that recognizes their name and gender depends entirely on the policy of the state or nation where they were born.  Accordingly, two employees born in two different jurisdictions, but otherwise identically situated, could obtain two different results when they apply for a birth certificate that reflects their gender identity.

            In terms of correcting personnel records, name badges, email addresses, and other (legally insignificant) sources of identity information, the employer should treat these two employees identically.  Easily accessible company-wide guidelines for supervisors and human resource managers can help avoid discrepancies within and among employers’ offices.

            Regardless of whether ENDA passes this year, employers should strive to eliminate bias in the workplace and create a more LGBT-inclusive work environment.  These three New Year’s resolutions will help employers get started.