ARTICLE
10 October 2016

Exploring LGBT Discrimination In The Workplace

MW
McDermott Will & Emery

Contributor

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The effects of same-sex marriage on employee benefits, companies' actions to prevent employee discrimination and an evolving focus on benefits with special implications for diverse employees continue to be hot topics in today's workplace.
United States Employment and HR

Impact of Same‐Sex Marriage on Company Benefit Plans and Employment Policies

  • After the U.S. Supreme Court's same‐sex marriage rulings in 2013 and 2015, these are some of the effects on employee benefits:
    • Employees who participate in retirement plans receive automatic survivor death benefits for their same‐sex spouses benefit.
    • Employers that choose to extend health benefit coverage to their employees' spouses generally must also provide it to same‐sex spouses.
    • Movement toward marriage: Potential rescission of domestic partner benefits since same‐sex marriage is now legal in the United States.
      • Verizon, Delta Air Lines, IBM, Corning were among large employers that had rescinded domestic partner benefits to employees and began providing spousal coverage instead.

II. Employment Discrimination Policies & Actions to Protect Diverse Groups

  • Companies have taken action to protect diverse groups, including LGBT employees, by:
    • Adding sexual orientation and/or gender identity to nondiscrimination policies, even when it is not technically legally protected.
  • EEOC determined in a 2015 ruling that discrimination based on sexual orientation is discrimination based on sex.
  • EEOC recently filed two sex discrimination cases that are based on sexual orientation:
    • In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was verbally harassed because of his sexual orientation. After a supervisor refused to take any action to stop the harassment, the employee quit his job.
    • In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed because of her sexual orientation. A supervisor told the employee, "I want to turn you back into a woman" and "You would look good in a dress," and made suggestive gestures. The employee was fired formaking a complaint.
    • Allegation in both is sex discrimination.

III. Issues Facing Transgender Employees

  • Reaction of other employees to a transgender co-worker
    • More and more employers offer diversity training covering gender identity and gender expression.
    • Many employers have Workplace Gender Transition Guidelines that recommend having an engagement plan and a support team to ease the employee's transition.
  • Dress code while transitioning in the workplace
  • Access to a restroom corresponding to the employee's gender Identity
  • Recent lawsuits alleging discrimination and harassment – such as being passed over for a job promotion or fired because of one's gender identity, and verbal or physical abuse in the workplace

IV. New Focus on Benefits With Special Implications for Diverse Employees

  • Gender‐neutral parental leave
  • Adoption assistance and leave
  • Surrogacy assistance
  • Transition‐related health care (i.e. surgery and drug therapy for gender reassignment)
    • Nike, IBM, Microsoft, Google, Apple, and Kroger (which is the largest supermarket chain in the U.S.) are part of a growing list of companies offering trans‐inclusive coverage as part of their diversity initiatives

V. Corporate Outreach and Involvement

  • Human Rights Campaign Corporate Equality Index – measures LGBT workplace inclusion
  • Burger King PrideWhopper
  • Cruise lines, such as Carnival, Norwegian, and Royal Caribbean, have offered all‐gay cruises.
  • Hotel chains like Marriott and Hilton have websites for LGBT vacation packages.
  • Airlines like airberlin and Lufthansa have websites for LGBT travelers. JetBlue has sponsored the Long Beach Gay and Lesbian Pride Festival.
  • U.S. companies have taken a stand against initiatives that are perceived as discriminatory towards LGBT individuals:
    • Disney, and its subsidiary movie studio Marvel, recently warned Georgia that they will choose to film elsewhere if it enacts a religious liberty law that would allow faith‐based organizations to deny services or employment to anyone who violates their sincerelyheld religious beliefs.
    • PayPal recently abandoned plans to create 400 jobs in North Carolina due to a proposed law under which people would only be permitted to use public restrooms that correspond to their biological sex.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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