The Equal Employment Opportunity Commission (EEOC) - the federal agency that enforces civil rights laws and investigates complaints of job discrimination – saw the number of cases filed relating to discrimination based on sexual orientation or gender identity increase by 40 percent from 2013 to 2014. Experts predict that the number of complaints will continue to rise.
Given the unprecedented pace of change in lesbian, gay, bisexual, and transgender (LGBT) related legislation, companies should re-examine their workplace policies.
New compliance issues and best practices for employers
Same-sex relationships: The U.S. Supreme Court’s decision on same-sex marriage reinforces that employers must not discriminate against an employee who is in a same-sex relationship.
Fully insured health and welfare plans must extend coverage to same-sex spouses. While self-insured plans may continue to define “spouse” as excluding same-sex, this will likely subject such plans and their corresponding employers to claims of discrimination.
Gender identity: Employers must ensure that they are in compliance with state and local gender identity laws.
Currently, 19 states and the District of Columbia, and over 200 local jurisdictions explicitly prohibit discrimination by employers based upon gender identity or expression. Several state courts and administrative agencies (such as California, Hawaii, New Jersey and New York), have ruled that their state sex discrimination laws cover discrimination against transgender individuals.
These laws may create additional requirements for employers over and above the EEOC regulations, so employers should consider the following workplace best practices:
- Dress Codes: Review (and if necessary revise) dress codes and policies to make them gender-neutral; avoid specifically defining what males and females may wear. Dress codes that require professional business attire regardless of gender are recommended.
- Restroom Access: The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued guidance on providing restroom access to transgender employees. Best practice for compliance includes not requiring a transgender employee to use a specific restroom and to allow the employee to choose the facility which he or she will utilize. Employers should allow a transgender employee to choose the facility that he or she feels is safest and most comfortable.
- Employee Records: Be prepared to update or change an employee’s name and sex in certain employee files; this may include modifying e-mail addresses, business cards, security badges, insurance policies, etc.
- Employee and Manager Training: Preventing discrimination in the workplace starts with a strong training program, which should include sexual orientation and transgender awareness and ways to prevent potential issues.