The question of LGBTQ rights is front and center in the news recently – specifically, the question of whether the federal Civil Rights Act of 1964 allows an employer to fire or discriminate against its employees based on their sexual orientation or gender identity. This question is before the United States Supreme Court in a trio of cases involving New York, Michigan and Georgia law, and many expect the ruling to be a landmark in civil rights law.
Regardless of the Court’s ruling, however, your company should be prepared to address issues that may arise in your workplace with respect to LGBTQ and, specifically, transgender employees. According to a study by the Williams Institute at UCLA, the number of people who identify as a gender other than that assigned at birth has doubled in the last 10 years. This estimate is likely low, however, because the number of LGBTQ workers who feel they cannot “come out” continues to be above 50 percent, according to the Human Rights Campaign Foundation.
Regardless of the actual numbers, these societal issues are here to stay and, as HR professionals, we must be prepared to handle them with grace and respect for all employees. It is not only the right thing to do; it also reduces risk for your organization and helps your bottom line.
The issue of risk management
While the Commonwealth of Kentucky does not prohibit discrimination based on sexual orientation or gender identity in state law, many local jurisdictions have enacted such laws. At the time of this article, approximately 14 Kentucky jurisdictions have fairness ordinances on the books, so even if federal and state law have “do not prohibit discrimination based on gender identity,” employers nevertheless must ensure they are in compliance with local laws. If you operate in one of these jurisdictions and have not reviewed your policies and practices with an eye toward this particular demographic, you could end up in hot water.
But more important than risk management, addressing transgender issues proactively will help you retain and engage your workforce. It is accepted wisdom that retaining existing workers is much more cost efficient than hiring and training new ones. Employers with inclusive, fair and respectful policies and cultures are more likely to have engaged workers who feel like they belong and can be themselves at work without fear of harassment or bullying. And engaged workers who feel respected are less likely to leave, are more likely to offer diverse ideas and tend to be more loyal to their employers.
When it comes to hiring, if you overlook the transgender population and the workplace-related issues it faces, you may lose the opportunity to gain a competitive advantage over other companies in your field. Most employers now strive to create diverse and inclusive workplaces for all employees. For example, since 2002, the number of companies with non-discrimination policies based on gender identity is up more than 82% (Corporate Equality Index 2019). An increasing number of organizations also are offering transgender-inclusive health benefits, such as covering treatments and services related to sex affirmation as medically necessary, as opposed to cosmetic. These inclusive policies and cultures can set your company apart at hiring time, a big plus in today’s tight job market.
So, what are some additional practical steps that you, as an HR professional, can take to move toward a transgender-inclusive culture? First and foremost, you must educate yourself in an effort to create awareness and understanding of the issues transgender coworkers may face. Do the research, learn the differences in terminology and listen to transgender employees on ways you can support them. Also, encourage your company to move toward a gender-neutral environment in areas such as gendered language used on forms, in dress codes and in policies (e.g., write employee handbooks in second person – using “you” – instead of third person, to avoid he/she pronouns). Find out which pronoun employees prefer and then model that, especially in front of other employees. The touchstone in all matters should be respect.
If you have an employee in your organization who is in the process of transitioning or anticipates transitioning, HR has several roles and responsibilities. HR should collaborate with the employee and management to create and support a transition plan. This plan should include training and specific measures to assist co-workers who might struggle with another employee’s transition. HR must identify and communicate what the expectations are for staff and transitioning employees, as well as what the employee can expect from the organization with respect to resources and support. All of this must be done in a manner that shows the utmost respect for and preserves the dignity of the transitioning employee.
The Supreme Court may or may not require you to change the way you conduct your business with respect to LGBTQ and transgender employees. But do it anyway – for your company’s culture and bottom line.
Stephanie Prewitt is an Executive Director and founder at Foundations Human Resources Consulting in Lexington, Kentucky, a wholly owned subsidiary of labor and employment law firm Fisher Phillips. You may reach Stephanie at (859) 286-1100 or sprewitt@FoundationsHR.com.