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Employment Law

Sexual Orientation and Gender Identity Issues in the Workplace

human-668298_1280 (2)Many employers would rather not deal with any issues of sexual orientation or gender identity at the office, considering these to be private matters and not topics for an employee handbook.

But the Equal Employment  Opportunity Commission (EEOC) has signaled to the workforce that sexual orientation is on their radar with suits filed this month alleging workplace discrimination because of sexual orientation. Sexual orientation is neither a specifically federally recognized protected category, nor one protected by every state (including Michigan). Nevertheless, the lawsuits indicate the EEOC’s willingness to advocate for victims of sexual orientation discrimination as a protected sub-category of sex discrimination.

The EEOC’s actions put all employers on notice to be far more proactive and thoughtful with their workforce.

Some actions you may want to consider:

  • Look carefully through all employee handbooks and documents to be sure that all language is inclusive and as non-gender specific as possible.
  • Change dress codes and uniform requirements so that there are no distinctions among the sexes and enforce dress codes uniformly regardless of gender.
  • Train all levels of management adequately on diversity and inclusion in hiring and working together as well as prevention of sexual harassment of all types as well and workplace bullying.
  • Have an iron-clad system for dealing with any and all complaints of sexual orientation and gender identity discrimination and be sure that all workers are aware of the protocols for reporting these issues.
  • Come up with a plan for when employees tell management about changes in gender self-identification. Be sure supervisory staff is trained to respond appropriately and that the workplace environment continues to be  a supportive and fair one. Create a plan for every step of this transition, including changing uses of pronouns, handling any transition discreetly and creating a system of checking in with an employee to be sure their needs are being met.
  • Review the status of staff restrooms. We recommend the Occupational Safety and Health Administration (OSHA) publication entitled “A Guide to Restroom Access for Transgender Workers”. It is better to review this publication now, so if changes need to occur, your team of leaders will already have received good information.

As in most aspects of employment law, we encourage you to consult with a specialist in employment law as you develop protocols and revise any employment documents.