When I first started working in HR, the responsibility to my company and employees weighed heavily on me.  My degree is in Business and Marketing, not Human Resources, and I was nervous that I might make a mistake and somehow get myself and/or my company sued for some sort of misconduct.  I read policies and asked questions and collaborated on decisions and worked my way up within the company, but the worry in the back of my mind never left me.  HR leaders in my company described on several occasions how miserable the process of being deposed was or the feeling they had when they realized they didn’t have the documentation they should for an impending legal hearing.  When I decided to get my PHR (Professional of Human Resources) certification my primary motivation was learning the HR body of knowledge so I wouldn’t stay awake at night wondering if there was something I didn’t know that could cause an issue for my company.

Although getting my PHR gave me some comfort and I spent less time worrying about what I didn’t know, I learned that keeping up with changing industry trends and legal decisions requires constant attention.  When attending a legal update opportunity with a local law firm I was interested to hear the speaker reference the Equal Employment Opportunity Commission’s focus on discriminatory harassment in the workplace in their 2013-2016 Strategic Enforcement Plan.   In fact, in the four years prior to the 2013 strategy document’s release, one third of the systemic discrimination suits filed by the agency (EEOC) challenged discriminatory harassment in the workplace.  In other words, the EEOC saw discriminatory harassment in the workplace as such a big issue that they devoted a third of their resources to pursuing these claims against employers.

While reading the EEOC’s strategy document I was also interested to read (in their section on emerging and developing issues) that the commission’s three focuses included LGBTQ employees.  The three issues of focus for the 2013-2016 period were:  Americans with Disabilities Act issues, accommodating pregnancy-related limitations under the ADAAA, and “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”

The confusion for employers when it comes to sexual orientation and gender identity workplace protections is understandable.  Only twenty states, plus Washington D.C., have laws that prohibit workplace discrimination on the basis of sexual orientation and gender identity.  There are 235 US cities that prohibit discrimination based on both sexual orientation and gender identity in the absence of their state taking the same action.  Add to that the 2014 Executive Order prohibiting discrimination for sexual orientation and gender identity for federal contractors and federal agency interpretations (EEOC, Dept of Justice, Dept of Education, Office of Personnel Management, etc) of existing civil rights laws to cover sexual orientation and gender identity under the umbrella protection of “sex” and the lines become blurry as to who is protected and who is not.  While some of these protections will likely change moving into 2017, it is more important than ever to be aware of their statuses when making decisions about workplace policies.

Consultation with an attorney is advisable on these complex issues.  HR professionals should take the EEOC’s current lead in focusing on workplace protection for sexual orientation and gender identity regardless of whether those trends shift with the new political administration.  The Fortune 500 is leading the way with 89% of Fortune 500 companies prohibiting discrimination on sexual orientation and 66% prohibiting discrimination on gender identity  in their workplaces.  In addition to updating policies to prohibit discrimination and harassment based on sexual orientation and gender identity, HR leaders should look at providing LGBT cultural competency training to their management.  Managers set and reinforce the culture of companies in many ways and have a close up view of issues as they begin to develop.

To have a conversation about LGBTQ employee workplace protections and/or cultural competency training email Kelly Nichols at knichols@glbtcolorado.org.