Inclusiveness, civility, respectful treatment: Those are all concepts getting a lot of attention as employers struggle to cope with what seems like an increasingly divisive culture often threatening to bleed over into the workplace.
A changing legal landscape also must be considered as employers strive for productive and nondiscriminatory working environments. For example, a landmark ruling from the 7th U.S. Circuit Court of Appeals recently concluded that sexual orientation is a protected category under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) also sees Title VII as encompassing sexual orientation and gender identity. Also, many state legislatures have passed laws prohibiting discrimination based on sexual orientation and gender identity.
But just complying with laws, agency guidance, and court interpretations won’t produce a culture of inclusiveness. Instead, it takes sound workplace policies, effective training, and—most of all—commitment from the top.
Policies, training vital
Ryan Frazier, an attorney with the Kirton McConkie law firm in Salt Lake City, Utah, advises management to adopt policies that prohibit discrimination and retaliation that relate to sexual orientation and gender identity. He points out his state of Utah along with many other states have laws prohibiting such discrimination, and federal law is headed in the same direction.
In addition to drafting policies, employers need to develop training to make the policies effective, Frazier says. The workforce as a whole must understand that the employer won’t tolerate discriminatory treatment based on LGBT status, but it is management that must set the tone and foster an attitude for the workplace that promotes equal treatment, he says. Management needs to make it clear that harassment such as jokes and slurs won’t be tolerated. “Management needs to set the example in how they treat employees,” he says.
Training should go beyond just rules against discrimination and retaliation, Frazier says. Management should send a message to all employees that the organization is committed to giving individuals with a different sexual orientation or gender identity than the majority “a fair shake” and that they are valued.
“By doing so the employer creates a culture of inclusion,” Frazier says. Management can “set a tone and develop a culture that shows that we embrace these individuals, and by doing so that trickles down to the rest of the employees.”
Frazier points out that many state legislatures have made sexual orientation and gender identity protected classes under the law.
Also, “courts in the federal system have been in greater and greater numbers interpreting Title VII” as including sexual orientation.
That’s somewhat of a departure to past rulings that recognized discrimination claims based on sexual stereotypes as falling under Title VII but not direct discrimination based on sexual orientation or gender identity. Court rulings interpreting Title VII as encompassing sexual orientation and gender identity are still not definitive, “but you’re starting to see that more and more,” he says.
The EEOC also sees Title VII as covering sexual orientation and gender identity. There was some question whether that view would continue under the Trump administration, Frazier says, but “we haven’t seen that departure.” So employers must know that they face legal liabilities for allowing discrimination based on LGBT status..
Developing a culture of inclusiveness also can mean promoting civility. Catherine Mattice, a speaker, author, consultant, and trainer, and Jerry Carbo, a professor of management and marketing at Shippensburg University, recently conducted a Business and Legal Resources webinar titled “Civility at Work: Build a Legally Enforceable Culture of Respect.” Although the webinar was about bullying in general, not incivility exclusively related to LGBT status, their message can be used when developing training programs on attaining an inclusive workplace.
Such programs are key to achieving civility, Mattice and Carbo say, but they have their limitations. Training is just a learning event, Mattice says.
“Training is totally useless unless the culture supports what was learned in the training,” Mattice says. Training alone doesn’t ensure anything will be gained. “You have to have the right culture first before you can implement anything else.”
Carbo agrees. “How you handle that training is a signal, and signaling is so important here. If you are just going through the motions, that signal comes through loud and clear.”
Need to learn more? Join us November 15-17 for the 2017 Advanced Employment Issues Symposium, where Kirton McConkie attorney Ryan Frazier will present NEW REALITY OF WORK: Expansion of LGBT Rights Under Title VII: What Companies Can Do to Foster Inclusiveness and Minimize the Risk of Costly Lawsuits. This session will provide a framework for ensuring that your employment policies and practices don’t violate LGBT workers’ rights. It will also provide strategic direction on how to ensure a culture of inclusiveness toward LGBT employees. For more information, click here.