Supporting LGBTQ+ Employees in an Evolving Legal Landscape

This morning, the Supreme Court held, in 303 Creative LLC vs. Elenis, that the First Amendment would permit a website designer to refuse to create designs that advertise same sex weddings. Earlier this month, the Human Rights Campaign (HRC), the nation’s largest lesbian, gay, bisexual, transgender, and queer (LGBTQ+) civil rights advocacy organization, issued a report declaring a state of emergency for the LGBTQ+ community in the United States.

Elenis arguably creates the ability for businesses to discriminate against an otherwise protected class, creating confusion for employers in terms of which laws apply, and in what scenarios. Further, the HRC’s declaration was due to the broader volume of laws that have been passed or proposed at a state level in 2023 that the HRC considers to adversely impact the LGBTQ+ community. These state bills cover a large range of topics, and those pertaining to the workplace include:

• Bathroom bans requiring individuals to use the restroom that aligns with their sex assigned at birth rather than their gender identity; and
• Narrow definitions of sex based on the role of reproductive organs an individual is born with, which are counter to many local, state and federal workplace protections that expand the definition of sex to also include gender identity.

Why should businesses care?

More than ever, businesses are faced with balancing their core values and operational needs with the quickly evolving regulatory landscape when implementing and maintaining their diversity, equity and inclusion (DE&I) initiatives. Businesses must:

• Be prepared to manage the challenges they could encounter when administering policies and practices that may differ across state lines;
• Be ready to support and promote worker mental health and productivity; and
• Be considerate of how their approach may impact their ability to recruit, engage and retain workers.

What are some best practices your business can implement?

At its core, a business is a group of people working together toward a common goal; it’s your people who move your company forward. A non-exhaustive list of best practices and resources can be found below to support you with supporting your people:

1. Tailor policies and practices to your work locations. It’s important to understand the industry, local, state and federal laws that apply where your employees perform their work. Review workplace policies carefully as some local and state laws that impose restrictions or requirements that adversely impact the LGBTQ+ community are likely not a recommended HR best practice to implement organization-wide if you also have employees performing work outside of those impacted locations.

Additionally, such laws may create risk for violating LGBTQ+ protections, such as anti-discrimination and workplace accommodation laws, requiring thoughtful implementation to reduce your potential for employment issues.

2. Consult with experts. Leverage materials and resources from industry leaders. For example, the HRC’s National State of Emergency website includes a Living as LGBTQ+ Guidebook for navigating states with anti-LGBTQ+ legislation, among other resources.

When developing your policies, practices, training content and communications, particularly in states where the applicable laws adversely impact your LGBTQ+ workers, consult with legal counsel for support.

3. Place worker safety first. Review LGBTQ+ travel advisories and consider providing flexibility for impacted individuals who do not feel safe traveling to certain states. For example, you may consider permitting workers to conduct business remotely through video technology rather than in-person.

Additionally, we recommend consulting with local law enforcement and your company’s employee assistance program (EAP) vendor for safety guidelines that are tailored to your business.

4. Respect names and pronouns. Implement processes that allow workers to self-disclose LGBTQ+ related personal information, such as gender identity, if and when they’re ready. This simple practice can contribute to your workers feeling valued and comfortable to be who they are, without regard to their gender assigned at birth.

Consider implementing optional fields within your documents and HR platform(s) for preferred name and pronouns, and communicating your company’s expectations surrounding use of this information by colleagues. Help to normalize pronoun usage in your company’s day-to-day practices, such as including them in introductions (“Hi, my name is Sarah, and I use she/they pronouns.”) and in email signatures.

5. Consider appearance. Avoid gender stereotypes and provide flexibility within dress code policies by using non-gendered language and focusing rules on articles of clothing rather than on gender or grooming standards, where possible.

6. Bathroom and other sanitary facilities. The Occupational Safety and Health Administration (OSHA) requires that toilet facilities be provided to employees and that unreasonable restrictions cannot be imposed upon an employee in the use of the facilities. The creation of a unisex, single-use bathroom is an option that can help to reduce worker concerns while also complying with restrictive state laws. If this is not an option for your worksites, consult with HR experts for individualized best practice recommendations based on where you have employees.

7. Your business’s position. Prior to making public statements or otherwise taking a stance on human rights issues, such as joining the HRC’s Count Us In Pledge, businesses should refer to their established policies and practices related to such positions.

When you see TriNet’s People Matter campaign, we hope you will consider this: it is not just a slogan. Rather, it is a lens through which we see the world. Connect with our experts today to learn more about TriNet’s DE&I initiatives or any of our full-service HR solutions for small and medium-size businesses.

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