Pride Month 2020: The importance of creating 'diverse and inclusionary' work environment for LGBTQ+ community
There is no federal law that protects LGBTQ+ employees from workplace discrimination and only 22 states and the District of Colombia have specific laws that prohibit
The Stonewall Riots was a defining point in LGBTQ+ history that paved the way for a revolution and brought about substantial changes for a community that had been looked down upon and judged for a very long time. As the decades passed, there has been a greater acceptance of LGBTQ+ identities, yet there are still several shortcomings that they continue to face. While some societies are fully-inclusive, some still harbor pre-existing and prejudiced notions about queer individuals, which evidently shows that there is still so much more to be done. This especially rings true when it comes to workplace culture and in matters of employment.
In the US, discrimination in the workplace and in hiring practices against LGBTQ+ staff prevails, despite the number of laws implemented for their safeguard. According to a 2017 Harvard opinion survey, 90 percent of LGBTQ+ Americans believed that they are still prone to discrimination in the present day. Some 59 percent of respondents said that they were unlikely to obtain any employment in the area that they live in because they are queer. One in five revealed that they faced hardships in the job application process. The unemployment rates among individuals that identify as transgender are three times higher than the general population, per data from the National Center for Transgender Equality.
There is no federal law that protects employees from being discriminated against in the workplace on the basis of their sexual orientation or gender identity. Only 22 states and the District of Colombia have specific laws that prohibit workplace discrimination against LGBTQ+ staff, which means in 28 out of 50 states, there are no state-level protection or legal recourse if they are fired or harassed for being LGBTQ+. According to Catalyst, a global nonprofit that works to build workplaces for women, nearly 3.9 million LGBTQ+ workers, out of an estimated 8.1 million population, aged 16 or older live in states that don't render them any statutory protection.
"This gap is particularly acute in the South, where only three states have enacted statewide protections for LGBTQ+ workers," Shannon Minter, the Legal Director at National Center for Lesbian Rights told MEA World Wide (MEAWW). And as far as the states that have anti-discriminatory laws for LGBTQ+ staff are concerned, their effectiveness varies by locality and degree of protection. "In some states, such as California, there are robust anti-discrimination laws, and both state agencies and state courts have enforced them to create strong protections for LGBTQ+ workers," said Minter. "In some other states that have included LGBTQ+ people in their anti-discrimination law, there is not yet a significant body of case law or regulations, and the scope of the protection is less clear." Cities and counties in the countries void of protection laws have formulated regulations of their own to ensure that their LGBTQ+ populations are protected. However, Arkansas, Tennessee, and North Carolina are the only three states that have preempted their local governments from passing such laws.
Companies and employers, big or small, are required to provide its staff with employment benefits, and technically the LGBTQ+ staff is also entitled to it. Ensuring that the benefits are LGBTQ+ inclusive and that it also extends to their families or spouses is beneficial to the business as a high-return proposition. However, data from the Catalyst shows that 22 percent of LGBTQ+ Americans have not been paid equally or promoted at the same rate as their colleagues, which also poses questions about their employee benefits. In 2015, The Supreme Court ruled in Obergefell v Hodges that married same-sex couples must be given the same legal rights, benefits, and protections as other married partners. Despite that, some employers continue to deny equal benefits to same-sex spouses and this could potentially be an area where LGBTQ+ individuals can file lawsuits in order to obtain equal treatment. In states that practice protection laws, LGBTQ+ workers can avail the same remedies as other workers. Typically these may be reinstatement or money damages in lieu of lost wages.
Even so, legal handling of this matter can be complicated. According to Edgar Ndjatou, the Executive Director at Workplace Fairness, there are several factors that play into a lawsuit that allows someone to get the justice they are seeking. "A lot of times when someone files a lawsuit, particularly an employment discrimination lawsuit, there can be situations where the allegations occurred. But, because there are no witnesses or documentation, or just other unfortunate circumstances that are not necessarily in someone's control, you can't really make enough of an argument to convince a court or a jury that a bad action occurred," Ndjatou told MEAWW. While some people will certainly have some success when filing a complaint about discrimination, others may just not be able to provide solid proof.
The LGBTQ+ staff is often plagued by concerns of privacy in the workplace, which prevents them from being able to work to their full capacity. In addition to that, there are no laws for privacy protection, Minter said, "but some courts have held that LGBTQ+ workers have a right to privacy and cannot be forcibly 'outed' by their employers". Almost 46 percent of the American LGBTQ+ workforce comprises of closeted employees for fear that they will be subjected to discrimination, per Catalyst. Nearly 59 percent of non-LGBTQ+ employees believe that it is "unprofessional" to discuss sexual orientation or gender identity in the workplace. According to Ndjatou, an LGBTQ+ employee's information should be kept private unless they want it to be revealed. "If someone is trying to come out by trying to go through a sex change, that's a medical procedure. So whether they're taking hormones or seeking a mental health professional to help with the process, or if they're going through a surgery, that information certainly is protected until the individual feels comfortable revealing that they're going through a sex change," he added. "At that point, it comes down to changing the name of the person, essentially. It's an outward physical change that someone could see and [includes] the use of pronouns."
When employers discriminate against an LGBTQ+ worker's sexual orientation or gender identity, they do it openly without reason, except that they are LGBTQ+. Minter described three current cases before the Supreme Court, two of which saw employers undisputedly laying off workers for simply being gay men and in the third, a transgender woman. "The employers do not deny that they fired these workers because of their sexual orientation or transgender identity," Minter added. "Instead, they are arguing that the law does not protect LGBTQ+ workers. That is typical of most of the discrimination cases that we have litigated on behalf of LGBTQ+ workers at NCLR."
Transgender workers are subjected to a different kind of harassment as compared to LGB workers, presumably three times more than their fellow queer employees. They are often mocked about bathroom accessibility, referred to by incorrect pronouns, and even have to tolerate inappropriate questions which could put them in a negative vantage point, leading to hostility in the work environment. In addition, LGBTQ+ people of color (32 percent) are likely to face a higher degree of discrimination compared to white LGBTQ+ individuals. They also face high levels of unemployment and poverty. Black and Latinx transgender people are a particularly vulnerable transgender demographic. According to a 2008 study by the National Center for Transgender Equality, more than 25 percent of black transgender people were unemployed, 4 percent had experienced homelessness at some time, and 34 percent reported a household income of less than $10,000 per year.
Discrimination against LGBTQ+ people is rampant in every part of the country, Minter ascertained, but they are especially vulnerable in the 28 states that have no laws that prohibit discrimination based on sexual orientation or gender identity. "Discrimination occurs in every industry, but LGBTQ+ workers are particularly likely to face harassment in the trades, in retail and service industries, and in police and fire departments," he added.
In these unprecedented times that we are faced with, battling through a raging viral pandemic, the LGBTQ+ communities across the country are not faring well either. Many LGBTQ+ individuals work in industries heavily affected by the COVID-19 pandemic including restaurants, retail, and entertainment. In addition, they are also more likely to be poor, uninsured, and faced with a shortage of food. "We are extremely concerned that the relief measures passed by Congress fail to protect the most vulnerable workers, such as those in the gig economy, and that many more LGBTQ+ people will be driven into homelessness and poverty in the months ahead," Minter stated.
What more can be done to ensure that the LGBTQ+ community is protected in terms of employment? It is imperative that employers seek to not just [create] a conducive and healthy work environment, but also one that is fully-inclusive and non-discriminatory. Ndjatou says one of the first things towards this is that the employer should have the will to do it. If there's no will, it does not matter how much money you throw at the problem, it would never amount to anything. "They have to have the will amongst the organization that they're committed, in writing and inaction, to creating a work environment that is truly diverse and inclusionary," Ndjatou stated. "That filters into the way they hire and identify talent [and] in [the] way they retain them and cultivate talent and, help a diverse pool of employees, be on a track to get into leadership positions in the company. That's the start."
"You have to have a diversity inclusion or affirmative action program that is robust and reflects the ideals," he continued. "It takes hard work and can lead to uncomfortable conversations about identity and whatnot. But that has to happen. It has to be something that's well thought out and executed." While there has been some success in the past couple of years, with both gay men and women rising to positions of power, there is still much to do and achieve in terms of creating a safe space for LGBTQ+ employees in the workplace.