Online Speaker Series: LGBTQIA+ Rights and Workplace Equality

As the understanding and recognition of gender diversity and LGBTQIA+ rights continue to progress, HR professionals play an increasingly vital role in fostering inclusive and supportive work environments for all employees. Compliance and risk management in this context require in-depth knowledge of the LGBTQIA+ community. By delving into issues such as gender identity, discrimination, dress codes, pronouns and legal protections, HR professionals can gain valuable insights that enable them to navigate the complexities of promoting diversity, equality, inclusion, and belonging (DEIB) within their organizations.

Tulane Law School’s faculty are nationally known experts in this area. At a recent Tulane Law Online Virtual Speaker Series, faculty members addressed this important topic during a speaker series entitled, “Out at Work: Compliance and Management in Managing LGBTQI Issues in Business.” The event was led by Professor Tracy Law, Tulane JD ‘16 and featured participation from Professor Saru Matambanadzo, Moise S. Steeg Jr., Associate Professor of Law and Senior Director of Online Legal Education, an expert in gender equality and workplace equity and the law, and Professor Ashley Banks, Tulane JD ‘12, an expert in labor law issues.

Read on to learn more about the importance of fostering workplace inclusion, its legal implications, and how HR professionals can effectively promote and cultivate a diverse workforce according to Tulane legal experts.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics such as race, color, religion, sex, and national origin.

While historically Title VII did not explicitly cover sexual orientation, there have been ongoing legal developments and debates on whether its prohibition on sex discrimination extends to include discrimination based on sexual orientation.

In recent years, there have been significant advancements in protecting employees from sexual orientation discrimination. Many states, including Pennsylvania, Wisconsin, and Minnesota, have long had anti-discrimination protections for LGBTQIA+ individuals. The interpretation of sex discrimination under Title VII has evolved through court decisions and administrative actions to encompass sexual orientation and gender identity.

The Equal Employment Opportunity Commission (EEOC), responsible for enforcing Title VII, has taken the position that sexual orientation discrimination is unlawful under Title VII. Some federal courts have also recognized that discrimination based on sexual orientation and gender identity is a form of sex discrimination prohibited by Title VII.

The landmark U.S. Supreme Court case of Bostock v. Clayton County (140 S.Ct. 1731, 2020) solidified the legal protection against sexual orientation discrimination under Title VII. The Court ruled that firing an individual for being gay or transgender violates Title VII's prohibition on sex discrimination. The decision emphasized that discrimination based on sexual orientation is inherently tied to an individual's sex and is thus covered by Title VII. It also acknowledged the role of sex stereotyping in the discriminatory treatment of LGBTIA+ individuals.

Overall, the Bostock decision provides clarity and protection for LGBTQ+ individuals, ensuring their rights are safeguarded against employment discrimination under federal law.

Despite the Supreme Court's ruling, it's important to note that there may still be variations in how different jurisdictions interpret and enforce Title VII's protection against sexual orientation discrimination. Throughout time, the courts have not uniformly agreed on whether sexual orientation discrimination is covered by Title VII. Until relatively recently, many courts interpreted "sex" in Title VII as referring strictly to gender-based discrimination, excluding sexual orientation. However, there has been a notable shift in judicial interpretation over time, with an increasing number of courts recognizing that sexual orientation discrimination is a form of sex discrimination.

Further, there may be some circumstances in which organizations may discriminate on the basis of sexual orientation. As discussed by Professor Matambanadzo, the ministerial exception in Title VII permits religious organizations to discriminate on the basis of religious affiliation for general employees, as established in the case of Corp. of Presiding Bishop v. Amos (483 U.S. 327, 1987). Regarding ministers, the ministerial exemption in Title VII allows religious organizations to discriminate when hiring a minister on various grounds, as determined in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (565 U.S. 171, 2012). A religious organization may decide to exclude women ministers, male nuns, gay priests, or transgender rabbis. This exemption has recently been expanded to include some employees, like teachers, as illustrated in the case of Our Lady of Guadalupe School v. Morrissey-Berru (140 S.Ct. 2049, 2020). However, this is complicated by the Supreme Court's interpretation of the Religious Freedom and Restoration Act of 1993 in the case of Burwell v. Hobby Lobby Stores, Inc. (573 U.S. 682, 2014), which determined that for-profit closely-held corporations may be exempt from statutes that burden sincerely-held religious beliefs. As a result, the Fifth Circuit Court of Appeals recently held in the case of Braidwood Management v. EEOC (2023) that private businesses with sincerely held religious convictions may discriminate against LGBTQIA+ individuals in the workplace under certain circumstances.¹

Additionally, it's worth considering that state laws and local ordinances may provide additional protections or have their own provisions against sexual orientation discrimination, often offering a broader scope of coverage than federal law alone.

Employers are advised to ensure that their policies and practices align with the evolving legal landscape. Proactively fostering an inclusive and diverse work environment, implementing anti-discrimination policies, and providing training on preventing discrimination based on sexual orientation can help organizations uphold the principles of equality and comply with legal obligations.

Bostock represents a significant step forward in safeguarding the rights of LGBTQ+ individuals in the workplace. However, as with any legal matter, it is essential to consult with legal professionals or resources specific to your jurisdiction to fully understand the implications and obligations related to sexual orientation discrimination under Title VII.

Speaker Series Insights:

• The Supreme Court decision in Bostock consolidated three cases into one and examined whether Title VII protects an employee from being fired for their sexual orientation.
• The Supreme Court acknowledges that sexual orientation and gender identity are different from sex, but they require discrimination on the basis of sex for protection under Title VII.
• The ruling does not apply to areas such as bathrooms, school sports, dress codes, or anything unrelated to employment.
• There will likely be more cases in the future specifically addressing transgender rights.
• The Equal Employment Opportunity Commission (EEOC) has stricter guidelines regarding the treatment of transgender individuals in the workplace.
• The EEOC guidelines state that intentional misuse of pronouns or chosen names can be considered harassment.

According to a recent SHRM article entitled, “Ensuring Workplace Inclusion for LGBTQ+ Employees,” promoting diversity, equity, inclusion, and belonging (DEIB) in the workplace is not only a moral imperative but also a strategic business decision.² According to the authors, numerous studies have shown that diverse organizations outperform their less-diverse counterparts in terms of revenue, profits and employee satisfaction. However, achieving true diversity requires more than just hiring individuals from different backgrounds. It necessitates creating a culture of inclusion and belonging that embraces and supports all individuals, including those who identify as LGBTQIA+.

The majority of individuals in the U.S. prioritize diversity and inclusion practices when choosing where to work and spend their money. Therefore, it is not enough to have written policies; the company's culture must also foster an environment where employees can bring their whole selves to work.²

According to SHRM, studies have revealed that LGBTQIA+ women who are open about their sexual orientation or gender identity at work experience greater happiness, view their workplaces more favorably and have longer intentions to stay with their current employer. By prioritizing LGBTQIA+ inclusion, organizations can reap the benefits across various aspects of their business, including employee recruitment, retention, revenue and profits.

At Tulane’s “Out at Work” event, the speakers had a similar perspective, emphasizing the importance of inclusion and belonging in the workplace. Professor Law and her colleagues highlighted several reasons why it matters. Treating employees well, respecting their differences and fostering a positive work environment ultimately benefits the workforce, fuels growth and brings in profits. And with current demographic shifts, competing for the best talent requires creating a more inclusive environment for LGBTQIA+ people.³

Speaker Series Insights:

• Organizations should go beyond legal requirements for LGBTQIA+ rights in the workplace; Going above and beyond benefits both employees and the company as happy employees are more productive and committed.
• Compassion and empathy are essential factors in creating a welcoming and inclusive environment.
• Doing “the bare minimum” can lead to employee dissatisfaction, disengagement, and potential attrition.
• Employees sharing negative experiences can have a ripple effect, causing others to question the company's values and consider leaving.
• The changing generational landscape, particularly with Gen Z entering the workforce, necessitates a focus on diversity and inclusion to attract top talent.
• There can be challenges balancing LGBTQ+ rights and religious accommodations.
• Addressing these issues can be complex

Professor Law, a former litigator in employment law and employment discrimination who now practices as a compliance consultant for Ellis Investigations, provided general education on key terms for understanding LGBTQIA+ issues. As part of this, they utilized a popular edugraphic by Sam Killerman: The Genderbread Person.⁴ The Genderbread person is a tool commonly used to promote inclusivity, educate about gender diversity and foster understanding and acceptance of different gender identities and expressions.⁵ It provides a visual representation used to explain and understand the various components of gender identity, gender expression, romantic attraction, sexual attraction, and sexual orientation. It consists of a diagram or image that illustrates the idea that these aspects are separate and exist on a continuum rather than being binary or fixed categories. It helps emphasize that gender is not solely determined by biological sex and that individuals' identities can vary along a spectrum.

Categories given include:

• Assigned sex at birth
• Gender identity
• Gender expression
• Attraction⁶

Understanding the concepts presented in a discussion of the Genderbread person is crucial when discussing workplace equality for LGBTQIA+ persons. The edugraphic highlights the fact that gender identity, gender expression, sex and sexual orientation are distinct and interconnected aspects of a person's identity.

Gender identity refers to how individuals perceive and define their own gender. It is an internal sense of being male, female, both or neither. On the other hand, gender expression encompasses how individuals present themselves to others through their appearance, behavior and clothing choices. It can vary along a spectrum, ranging from more traditionally masculine to more traditionally feminine expressions.

Professor Law reminded the participants that gender identity and gender expression may not align with an individual's assigned sex at birth. Sex refers to the physical attributes such as reproductive organs and chromosomes. Gender, however, is not solely determined by biological factors.

Furthermore, it is crucial to recognize that gender is separate from sexual orientation. Sexual orientation relates to an individual's emotional, romantic and/or sexual attraction to others. It can be categorized as heterosexual, homosexual, bisexual or asexual, among other identities.

Understanding these distinctions and viewing them as separate but interconnected aspects of an individual's identity helps foster inclusivity and respect in the workplace. It allows for a more comprehensive understanding of the diverse experiences and identities of employees. By promoting workplace equality and acknowledging the unique challenges faced by individuals based on their gender identity, gender expression and sexual orientation, organizations can create an inclusive and supportive environment where all employees can thrive and contribute their best.

Speaker Series Insights:

• The Genderbread person is a useful tool for teaching basic concepts and vocabulary related to the LGBTQIA+ community.
• Gender identity, gender expression and sex are distinct and separate concepts that exist on a continuum.
• Individuals' identities and expressions can change over time and should be respected and understood.

Professor Law also discussed discrimination and harassment of LGBTQIA+ people. Discrimination and harassment in the workplace are critical challenges that not only jeopardize employees' well-being but also impede their professional advancement. It can also lead to liability and bad publicity in the event of litigation. The detrimental effects of these issues can be observed in a multitude of ways, extending beyond traditional manifestations. Professor Law provided a detailed overview of the legal landscape of discrimination and harassment as it impacts LGBTQIA+ people. They discussed how common discriminatory practices revolve around dress code policies, the misuse of pronouns and unequal access to office restrooms.

It is also crucial to recognize the broader spectrum of discrimination that exists. For instance, microaggressions, conscious and unconscious bias that impacts decision-making in promotions and assignments, exclusionary practices in team dynamics, and unequal pay based on factors such as gender, race or sexual orientation are equally pervasive and harmful.

Tackling workplace discrimination and harassment requires a comprehensive approach that goes beyond surface-level policies and extends to fostering a culture of inclusivity, respect, and equal opportunities for all employees.

A comprehensive understanding of labor and employment law, coupled with proactive measures to promote diversity, can empower individuals to champion workplace diversity and create environments where every employee feels valued, respected and supported in their professional journey.

Speaker Series Insights:

• Discrimination in the workplace is a significant issue for individuals with non-conforming gender identities and expressions.
• In Bostock v. Clayton County, the Supreme Court recognizes that Title VII of the Civil Rights Act of 1964, a federal law that prohibits employment discrimination based on various protected characteristics, such as race, color, religion, sex, and national origin, protects employees from discrimination based on sexual orientation and gender identity.⁷
• Discrimination based on sexual orientation or gender identity is considered a form of sex discrimination.
• The Supreme Court's decision focuses specifically on employment and does not address issues related to bathrooms, school sports, or dress codes. But state laws may address such issues.
• The Equal Employment Opportunity Commission (EEOC) provides guidelines for the treatment of transgender individuals in the workplace.
• Employers should prevent intentional misuse of pronouns or chosen names and allow transgender employees to use facilities corresponding to their gender identity.
• Organizations should aim for more than the minimum standards to create an inclusive and supportive work environment.

Professor Law discussed how dress code policies can inadvertently perpetuate gender stereotypes and contribute to discrimination. Traditional dress codes often enforce rigid gender norms, expecting men and women to conform to specific clothing styles or appearances. Such workplace policies can create discomfort or unease for individuals who do not identify with binary gender expectations.

For example, transgender or non-binary employees may face challenges in adhering to these policies, which can lead to feelings of exclusion or discrimination. It is crucial for organizations to adopt inclusive dress code policies that allow employees to express their gender identity comfortably while maintaining professionalism.

Speaker Series Insights:

• Transgender employees have the right to dress according to their gender identity.
• Employers should not prohibit transgender employees from dressing professionally based on their identified gender.
• Different dress standards based on gender should not restrict transgender employees from expressing their gender identity through their clothing.
• The Supreme Court's decision and Title VII set the minimum standard for employers to follow regarding transgender rights in the workplace.

Professor Law provided an extensive discussion of the importance of using appropriate pronouns in the workplace. The misuse of pronouns is another aspect of discrimination and harassment in the workplace. Pronouns are an essential part of a person's gender identity and are a way for individuals to be seen and respected. Misgendering someone by using incorrect pronouns or refusing to acknowledge their preferred pronouns can cause significant distress and undermine their sense of identity and belonging.

Employers should create an inclusive environment where individuals are encouraged to share their pronouns, and efforts should be made to educate employees about the importance of using correct pronouns and respecting each other's gender identities.

Speaker Series insights:

• Consult transitioning employees about their needs and preferences for informing colleagues and supervisors of pronoun changes; Suggest options such as sending out an email or providing resources and training to educate others in the workplace.
• Model correct behavior from the top down. Urge management and leadership to use the correct pronouns, avoid inappropriate jokes and create a safe space for transitioning employees.
• Some employees may struggle with change and encourage leaders to differentiate between difficulties adapting and malicious behavior. Regular check-ins with transitioning employees and supervisors can help address any issues.
• There is a need for intentional and respectful use of chosen names and pronouns, as continuing misuse can constitute harassment according to EEOC guidelines

Unequal access to office restrooms can perpetuate discrimination and exclusion. Traditionally, restrooms have been labeled as either "men's" or "women's" based on binary gender classifications. This system fails to accommodate individuals who do not fit within those categories.

It is crucial for workplaces to provide gender-neutral or inclusive restroom facilities that are accessible to all employees, regardless of their gender identity. This ensures that everyone feels safe, comfortable and respected while using the restroom facilities. Bathrooms, and their usage, also have relevant legal considerations that companies should adhere to in order to help create a diverse, and inclusive, workplace.

Speaker Series insights:

• Workplaces should make gender-neutral bathrooms accessible and keep them unlocked, as it forces employees “to out themselves” every time they need to use the facility.
• Customers, clients and vendors may mistreat transitioning employees. Employers must take steps to address such harassment under Title VII.
• Creating a safe and inclusive environment is essential to retaining LGBTQIA+ employees.

The discussion on gender identity, expression and sexuality has important implications for HR professionals.

HR professionals should prioritize inclusive and diverse hiring practices. This involves actively seeking out candidates from different gender identities and expressions, as well as ensuring equal opportunities for all applicants. By embracing diversity, HR professionals can create a more inclusive and representative workforce.

Advocacy and provision of training and education on LGBTQIA+ issues within the workplace are important responsibilities for HR professionals. This fosters understanding, empathy and respect among employees, contributing to a more inclusive and supportive environment. Training programs can cover topics such as unconscious bias, respectful communication and the creation of an inclusive workplace culture.

Reviewing and updating existing policies is necessary for HR professionals to ensure inclusivity and protection against discrimination based on gender identity and expression. This encompasses anti-discrimination policies, dress code policies and guidelines for addressing gender-related issues and concerns. Effective communication of these policies to all employees is crucial.

Confidentiality and privacy must be prioritized by HR professionals when handling employees' gender identity and expression. Respecting individuals' privacy is essential, and disclosure of information about an employee's gender identity should only occur on a need-to-know basis. HR professionals should establish clear procedures for handling sensitive information and safeguarding employees' rights and confidentiality.

HR professionals assume a vital role in ensuring accommodation and protection for employees with diverse gender identities and expressions. They are responsible for establishing inclusive workplace policies and practices that honor individuals' chosen names, pronouns and gender expressions. Furthermore, HR professionals should be proactive in addressing requests for gender-neutral restrooms, uniform options and other accommodations that promote the comfort and well-being of all employees.

When it comes to promoting inclusivity and supporting LGBTQ+ rights in the workplace, HR professionals can benefit from accessing valuable resources and organizations that specialize in this field.

Here are three suggested resources mentioned in the “Out at Work” Speaker Series that can provide HR professionals with essential guidance, legal expertise and tools to create a more inclusive and equitable work environment:

1. GLAD (GLBTQ Legal Advocates & Defenders): GLAD is an organization dedicated to protecting and advocating for the legal rights of LGBTQ+ individuals. They offer resources, legal support and expertise in areas such as employment discrimination, transgender rights and workplace equality.
2. ACLU (American Civil Liberties Union): The ACLU is a renowned civil rights organization that champions equality and fights against discrimination. They provide valuable resources and guidance on LGBTQ+ rights, including workplace issues, policy advocacy and legal representation.
3. HRC (Human Rights Campaign): The Human Rights Campaign is the largest LGBTQ+ civil rights organization in the United States. They offer a range of resources and tools for HR professionals, including workplace equality guides, best practices for LGBTQ+ inclusion and educational materials on creating an inclusive work environment.

More resources and expertise surrounding federal, state, and local law employment and labor laws are available in master’s-level online law programs from a leading university.

MJ in Labor and Employment Law graduates are well-prepared to develop and implement diversity initiatives, create inclusive work environments and ensure that organizations comply with relevant legal requirements.

Tulane’s online MJ in Labor and Employment Law program fosters critical thinking, communication and negotiation skills, enabling individuals to effectively engage with stakeholders, educate colleagues and drive positive change.

As a Tulane Law student, you’ll master the complexities of employment law, gaining the legal foundation to meet federal, state and local compliance regulations.

Learn more about Tulane Law’s world-class curriculum and make plans to meet with a member of the admissions team today.