LGBTQ Rights In The Workplace: One Step Forward And Three Steps Back

Vicky Slade is an employment lawyer at Davis Wright Tremaine LLP and co-leads the firm's DEI Counseling Practice.
United States Employment and HR
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Vicky Sladeis an employment lawyer at Davis Wright Tremaine LLP and co-leads the firm's DEI Counseling Practice. Vicky has extensive experience and training in Diversity, Equity, and Inclusion, including an Advanced Diversity and Inclusion Certificate from Cornell University, and she holds the Cornell Certified Diversity Professional credential. As we celebrate Pride Month, we are mindful that the LGBTQ community faces many emerging and difficult issues in the workplace. Vicky shares her thoughts on these challenges and why it is so important to stay committed to fighting for equity.

As we enter Pride Month, it is important to celebrate our community and all we have accomplished. (I, for one, plan to get a babysitter and go out dancing. And here at DWT, we are celebrating with drag bingo on our rooftop deck!) At the same time, though, we can't lose sight of the emerging and difficult issues facing the LGBTQ community at work. While progress has been made, we have to remain vigilant to avoid losing ground that our predecessors fought so hard to gain.

First, some good news

The Equal Employment Opportunity Commission (EEOC) recently issued harassment guidance that officially confirms that intrusive questions around an employee's sexual orientation, gender identity, or body can constitute harassment, as can repeatedly misgendering the employee or denying them access to a restroom that is consistent with their gender identity. This is a huge win for the LGBTQ community, as it enshrines protections designed to ensure respectful treatment for LGBTQ individuals at work. Unfortunately, it is already facing a legal challenge from 18 states, who have argued that the agency guidance goes too far in its protections for gender-diverse employees. Moreover, the EEOC guidance is just that: guidance, and there are plenty of people out there who are fighting against gender inclusion and in favor of maintaining the right to discriminate against our community.

The thorny tension between religious freedom and LGBTQ rights

The intersection of religious rights and LGBTQ rights has led to increasing litigation, with many arguing that employee religious freedom equates to a right to discriminate against LGBTQ people. In May, a federal court of appeals reversed a lower court ruling in favor of a gay drama teacher who was fired by his Catholic school employer, on the basis that the school had a religious exemption to the applicable anti-discrimination law. Elsewhere, a teacher who refused to refer to trans and non-binary students by their correct names and pronouns on religious grounds claimed that the school discriminated against him when they ended his employment. In another case, two employees who were terminated after making negative and offensive comments in response to their employer's support of LGBTQ rights legislation claimed that the employer's decision constituted religious discrimination.

These cases and others like them are working their way through the court system. Although we have seen some positive early results, should any of these cases make it up to the Supreme Court, the outlook looks grim. Recall last year's 303 Creative decision, which held a graphic designer had a legal right to refuse to create a wedding website for same-sex couples on the basis of her religious beliefs. It is easy to imagine how a majority of the Court will respond when asked to weigh alleged religious objections against workplace safety and dignity for LGBTQ workers.

A reminder to employers and workers

Pride Month is important, and it is fun. I love celebrating with my community, and I always look forward to taking my kids to the Pride Parade. When I get back to my desk on Monday, however, I am going to sit down and continue the work to protect and maintain LGBTQ rights. As lawyers, business leaders, employers, or human resources representatives, we are in positions of power and influence. I urge employers to be mindful that LGTBQ rights are under attack and to remember that your policies and personnel actions can make a huge difference in creating an environment of inclusion—for everyone. And LGBTQ workers who are in accepting environments should remember how long and hard the fight was to get here, and how important it is to stay committed to equity.

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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