Enforcing anti-discrimination policies in the workplace
Thursday, October 12, 2017
The protection of LGBT workers against discrimination has been a gray area in the workforce ever since the Department of Justice filed an amicus brief declaring that Title VII of the Civil Rights Act of 1964 does not cover "discrimination based on sexual orientation." Although certain states have passed laws protecting LGBT workers, sexual orientation is not directly stated in Title VII, which protects individuals' race, color, religion, sex, national origin, age, and disability from discrimination.
In 2015, under President Barack Obama, the Equal Employment Opportunity Commission, ruled that existing civil rights laws prohibit sexual orientation-based employment discrimination. The EEOC also clarifies that sexual orientation is inherently a sex-based consideration, as many individuals already believed.
Under President Donald Trump, the Department of Justice took a new stance in July and declared that Title VII does not extend to discrimination against sexual orientation. In addition to his stance of leaving gay workers unprotected, Trump nullified Obama's Executive Order 13672, an order passed in 2014 protecting LGBT workers from sexual orientation or gender identity discrimination in the workplace.
With all the back-and-forth declaration of LGBT rights in the workplace, the lines between legality and illegality when it comes to discrimination are confusingly blurred. According to the Human Rights Campaign, 22 states, including California and New York, have clear protection laws against sexual orientation and gender identity discrimination in the workplace.
However, most southern states, including Texas and Florida, have limited or no laws at all protecting the rights of LGBT workers. Since the Trump administration has clarified that sexual orientation is not protected under federal law of Title VII of the Civil Rights Act of 1964, LGBT workers in those states without their own discrimination laws are left vulnerable and defenseless.
As business owners, knowledge of your state's stance on sexual orientation and gender identity discrimination in the workplace is crucial for the well-being of the company, as well as LGBT employees. Not only must business owners protect their employees from unethical discrimination, but business owners must also protect their company from claims of discrimination. Therefore, business owners must stay informed of the current federal and state laws pertaining to employment discrimination.
Although discrimination is not completely preventable, there are ways to legally strengthen your company's actions when acts of discrimination arise, as well as extending the protection to your employees.
In order to react to any claim of discrimination, business owners and HR departments should develop an anti-discrimination policy for the company, including unacceptable actions, clearly defined terms and definitions, company values, expectations of employees, and a detailed protocol for the company’s actions once a claim is made. Any policy created by a company must be as precise and descriptive as possible — without any ambiguity of what defines discriminatory actions and the protocol the company will take in response to claims.
Even if your company already has an anti-discrimination policy in place, it never hurts to regularly reread, update and clarify the descriptions in the policy. Developing guidelines and boundaries will eliminate any misunderstandings or confusion on how the company will handle a situation. Once a claim arises, investigate immediately, conduct interviews, collect evidence, document investigation and establish disciplinary actions.
Business owners and HR departments should also file for Employment Practices Liability Insurance to protect their businesses from discrimination, wrongful termination, sexual harassment claims or any other claims that employees might make. EPL protects the company financially in case wrongful claims become a lawsuit. A lawsuit is the worst possible outcome for a company, which is why covering the basics and creating anti-discrimination laws within the company is so important.
In light of the ambiguity involving the rights of LGBT workers, it's in the best interest of any company to thoroughly protect the business and employees from all types of discrimination. Without a clear and descriptive workplace policy on the definitions of employee discrimination in the workplace and the actions to take once discrimination occurs, the company remains vulnerable to lawsuits and legal battles.
Even though discrimination against LGBT workers is considered legal under federal law, most states have developed anti-discrimination laws protecting the rights of gay workers. Awareness of state laws, implementing policies and obtaining EPL insurance will ensure the protection of your employees and your company if discrimination claims ever arise.
Lastly, make sure to stay up-to-date with the fight for the federal protection of LGBT workers against discrimination in the event that sexual orientation and gender identity will be added to federal anti-discrimination employee laws.
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