Complying with & embracing LGBTQ equality laws
As the LGBTQ Equality Act moves to the Senate, review the potential impact the legislation could have on the workplace and employee litigation.
In a historic decision, the U.S. Supreme Court ruled in June 2020 that Title VII of the 1964 Civil Rights Act protects gay, lesbian, bisexual and transgender employees from discrimination. This landmark ruling was a significant step toward supporting the LGBTQ community in the workforce and protecting their rights as employees.
With the new administration now in place and the LGBTQ Equality Act having passed in the U.S. House of Representatives, it is vital for businesses across the country to understand and embrace how they can advance policies and procedures to comply with the law and offer a safe and comfortable environment for all LGBTQ workers.
How can the ruling impact employee litigation/?
Claims of discrimination, harassment, or retaliation based on gender identity or sexual orientation may increase given the size of the LGBTQ population. Nearly four million people in the LGBTQ community who had no state-level employment protection are now federally supported, according to a study by Catalyst. These individuals who have faced challenging issues in the workplace may now feel more inclined to file complaints and pursue legal action.
Employers and their insurance companies should prepare for a higher number of claims involving hiring and firing practices, hostile environment, harassment, retaliation, pay inequity, wrongful termination and potential disability discrimination for employees transitioning. This can be mitigated by creating a culture of diversity and inclusion that specifically addresses the needs of the LGBTQ community.
Creating a supportive environment
Companies should have a thoughtful strategy to ensure a supportive environment and to minimize the risk of hostile workplace claims. It is important that LGBTQ voices are heard, and messages from senior executives need to be genuine, supportive and followed by action.
Companies should consider taking steps such as, but not limited to, updating training and company policies related to discrimination and harassment, updating hiring practices and employee benefits, providing the opportunity for internal discussion and support of LBGTQ issues, and taking an external stance on fairness and understanding of LGBTQ issues. Social issues matter to consumers now more than ever. Taking a public stance, along with maintaining proper internal procedures to protect all employees, can help minimize the risk of reputational damage, boycotts, and other negative consequences.
Questions to consider
Here are some questions that your company should investigate and feel prepared to answer:
- Are your discrimination and harassment training materials and practices up to date, and do they include specific content on LGBTQ issues?
- Are you reviewing policies and procedures annually to ensure that they are compliant with new and changing regulations?
- Are your employees encouraged to report discrimination or harassment without fear of retaliation?
- Do your hiring practices include non-discriminatory assurances regarding LGBTQ status?
- Do your healthcare and leave policies fairly account for needs specific to transgender employees?
- Is your company offering employees a safe space for discussion around LGBTQ employment issues?
- Is your EPL insurance policy up to date and has it been reviewed?
Moiré Morón is assistant vice president of claims for QBE North America.
Priya Gandhi is a QBE North America attorney specializing in directors and officers.
The opinions expressed here are the authors’ own.
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