The recent Supreme Court decision that all states must recognize same-sex marriage has brought lesbian, gay, bisexual, transgender, and questioning (LGBTQ) issues into the forefront. This development, coupled with the news of the famed Olympian formerly known as Bruce Jenner coming out as transgender, signals changes that may impact you and your business more than you know. Not only is there an increased need for sensitivity and awareness about gender and sexual orientation in the workplace, but there are now more employee protections for employers to navigate.
The EEOC is clear that it now considers employment discrimination based on an individual’s gender identity, transgender status, or even cross-dressing as a form of sex discrimination that violates Title VII of the Civil Rights Act.
The call to action right now as employers is to be proactive in educating your employees, and especially your managers, about these laws. This includes education about how to avoid discrimination or retaliation in these areas, and thus avoid the litigation and damages that could result.
Understanding some vocabulary can help you be more sensitive to LGBTQ individuals. Let’s start with some terms that will make discussing these issues more clear.
- Cisgender (often abbreviated to simply cis): A person whose experiences of their own gender matches the sex assigned at birth, their bodies and their personal identity. In other words, a cisgender person is non-transgender.
- Sexual Orientation: The type of sexual, romantic, physical, and/or spiritual attraction one feels for others, often labeled based on the gender relationship between the person and the people they are attracted to; often mistakenly referred to as “sexual preference.” Note that sexual orientation is distinct from other components of sex and gender, like gender identity or biological sex. Sexual orientation includes the subsets of heterosexuality, homosexuality, bisexuality, and sometimes asexuality.
- Transgender: Referring to people who experience a mismatch between their gender identity (or their psychological self) and the social expectations for the physical sex they were born with.
- Queer or Questioning: The Q in LGBTQ can stand for either queer or questioning. Queer is an umbrella term for sexual and gender minorities who are not heterosexual or cisgender. Questioning is the process of exploring one’s gender, sexual identity, sexual orientation, or all three by people who may be unsure, still exploring, and concerned about applying a social label to themselves for various reasons.
Using these terms correctly is important because gender expectations often drive how we think people should behave. For example, we may expect women to wear dresses and make up in order to look professional. However, those expectations are discriminatory, and harmfully so, if a woman who only wears pants and doesn’t wear makeup is treated differently—or worse, is disciplined for not adhering to a dress code that excludes her because of her gender expression or gender identity. These gender norms and expectations sneak into our psyches, and even when we mean well, can be harmful if we are not mindful of them.
How might these issues come up in your workplace?
Hiring is one area that always merits caution. For example, at one business where a manager recently asked a transgender woman “What are you?” during her first day of work, and then proceeded to terminate her after she explained she was in transition, the business owner has just agreed to pay out an undisclosed amount in a major settlement.
Even without the termination, the manager’s “what are you / what am I supposed to do with you” reaction was hurtful and discriminatory. These reactions may be unavoidable if your managers are not trained. It’s up to employers to prepare your teams for how to handle these issues.
Do you know what to do if any of the following come up in your office?
Gender-specific bathrooms. This is a common, practical issue that often arises, whatever the specifics of your HR situation. This question can make managers feel awkward, but the answer is pretty simple. Employers should allow employees to use the restroom consistent with their gender identity, or have a gender-neutral or single-occupant restroom in your office.
Dress code policies. Likewise, a dress code policy needs to be written in a way that is not gender-based. It should be flexibly applied to allow for differences in individuals’ expression, within the bounds of the standards for your office.
Gender identity. Finally, if an employee requests to be recognized as another gender, a simple way to accommodate is to be careful about what pronouns you use with that employee.
Having handbook policies and educational resources that help you deal with these types of issues is important in preventing incidents from occurring, and in supporting your management team and protecting your practice.
Have a question? Give us a call.
If a situation that you aren’t sure how to handle comes up in your office, please give CEDR a call right away at 866-414-6056. As a CEDR Member, our Solution Center Advisors are here to help you navigate and limit your risks in dealing with these complex issues.
