As I wrote about earlier, the Equal Employment Opportunity Commission (EEOC) issued new guidance on protecting LGBTQ+ workers as well as addressing pregnancy-related harassment, religious expression, and virtual harassment. [1] It is crucial to understand and implement these new guidelines effectively to ensure compliance and foster a truly inclusive environment. [2] Many employers have been pro-actively building a culture where these expectations were already deeply rooted in the organization, specifically, around protecting their LGBTQ+ workers. Now, the EEOC’s guidance is aimed to ensure such protections are provided. But beyond just legal compliance, implementing and communicating these measures plays a huge role in fostering a truly inclusive environment.

Expanded View of Harassment

One of the primary changes in the EEOC’s guidance was an expansion of the definition of sexual harassment to specifically include discrimination based on sexual orientation or gender identity. Following Bostock v. Clayton County (and many cases before), the application of the definition of sexual harassment to protect individuals based on their sexual orientation and gender identity was not new. However, this update is important because it clarified – across the board - that discrimination based on sexual orientation or gender identity is discrimination on the basis of sex and therefore falls under the protections of Title VII.

Sadly, it’s easy to imagine what such discrimination could look like, and the EEOC provides specific examples of such harassment:

1. The repeated, intentional misuse of an employee’s pronouns or name;
2. Prohibiting an employee from dressing or presenting consistent with their gender identity;
3. Segregating an employee based on “actual or perceived customer preferences.”[3]

Additionally, the EEOC has specifically taken the position that “employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.”[4]

Why This Matters

What the EEOC guidance brings home is that employers have a moral and legal responsibility to prevent and respond to discrimination and harassment. This is a ground-level operation. There is an evident trend towards inclusivity (not without obvious and awful caveats). But on the ground, this progress can drag.  Employers need to be focused on preventing harassment and creating systems for responding to potential situations of harassment. It’s not just about having the right policies; it’s about building and insisting on the right culture and climate for everyone.

What Should Employers Do?

Here are some recommendations for employers to encourage inclusivity around sexual orientation and gender identity. These are best practices, and while not all are necessary, they’re worth considering when creating a culture of real inclusivity.

1. Update and Communicate Anti-Discrimination Policies

• Ensure company policies explicitly prohibit discrimination based on sexual orientation and gender identity. Regularly communicate these policies to all employees and ensure they are easily accessible.

• Provide Inclusive Training

• Just having policies is not enough. It’s important that employees are trained on how the policies apply in their day-to-day work.
• Ideally, specific to this conversation, these would also include regular training sessions on diversity and inclusion, with a specific focus on LGBTQ+ issues. Topics should include the importance of using correct pronouns, understanding gender identity, and recognizing and preventing harassment.

• Create Safe Reporting Mechanisms

• Establish clear, confidential processes for employees to report discrimination or harassment. Ensure all reports of any inappropriate behavior are taken seriously and addressed promptly.
• Employees should know where they can make reports, the process that follows once a report is made, and that any reports will be addressed promptly, thoroughly, and appropriately.

• Support Transitioning Employees

• Develop guidelines to support employees undergoing gender transition. This could include ensuring access to appropriate healthcare benefits, updating employee records, and providing time off for medical procedures.

• Review and Adjust Facilities

• Ensure all employees have access to restrooms and locker rooms that correspond to their gender identity.

• Inclusive Language and Communication

• Encourage the use of inclusive language in all company communications. This includes using gender-neutral terms and respecting employees’ chosen names and pronouns in all interactions.

• Lead from the Top

• Set the example. This may be the most important step. How the leaders in your organization treat others will show everyone else what is expected of them.
• This also means promoting diversity in leadership roles. Having LGBTQ+ individuals in visible leadership positions can help foster an inclusive environment and provide role models for other employees.

• Healthcare Benefits

• Ensure your healthcare benefits cover medical procedures related to gender transition and provide comprehensive support for LGBTQ+ health issues.

• Regularly Assess Workplace Climate

• Conduct anonymous surveys to understand the workplace climate and gather feedback from employees about inclusivity efforts. Use this feedback to make continuous improvements.

When employees feel respected and valued, they are more likely to be engaged, creative, and productive. Inclusive workplaces lead to higher job satisfaction and lower turnover rates. Companies known for their commitment to diversity and inclusion often attract a wider pool of candidates. Talented individuals are more likely to join and stay with a company that values and respects them.

Conclusion

Following the new EEOC guidance is not just about legal compliance; it’s about creating a workplace where everyone feels safe, respected, and valued. By taking proactive steps to update policies, educate employees, and foster an inclusive culture, your business can thrive in today’s diverse and dynamic environment. Remember, a respectful and inclusive workplace is not only good for your employees but also for your business’s success. 

[1] https://www.brickergraydon.com/hr-matters/eeoc-updates-its-guidance-on-workplace-harassment

[2] In certain instances, religious entities may be exempted from compliance with certain guidelines that contradict their religious beliefs.

[3] https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination

[4] Id. See also, https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120133395.txt

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