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Supreme Court Affirms LGBTQ+ Workplace Rights

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In a 6-3 decision this week, the U.S. Supreme Court ruled that federal anti-discrimination laws cover LGBTQ+ people and that they cannot be legally fired for their sexual orientation and gender identity, ensuring protection under Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch wrote in the majority opinion that, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The decision was based on two separate cases brought before the Court. In 2013, Aimee Stephens was fired from her job as a funeral home director when she revealed her gender identity to her colleagues. Her former boss testified that he had fired Stephens based on the fact that she was “no longer going to represent himself as a man.” The case was the first before the Supreme Court regarding transgender rights. The second case was that of Gerald Bostock and Donald Zarda, who claimed that they were fired from their jobs as a child welfare services coordinator and a skydiving instructor, respectively, for being gay. Both Stephens and Zarda passed away before seeing their cases decided by the Supreme Court.

According to an April 2020 report from UCLA School of Law’s Williams Institute, 8.1 million LGBT workers age 16 and older live in the United States, and before the Court’s ruling, 3.9 million lived in the 28 states where it was legal to fire someone based on their sexual orientation or gender identity. In 2019, the U.S. Equal Employment Opportunity Commission (EEOC) brought more than 1,800 charges of LGBT-based workplace sex discrimination. Additionally, a 2017 survey showed that 20% of LGBTQ Americans reported facing discrimination when applying for a job, and 22% were not paid equally or promoted at the same rate as their colleagues who were heterosexual and cisgender. Advocacy organization Out Leadership also reported that, in 2020, “less than 0.3% of Fortune 500 board directors” were openly LGBTQ+.

These factors contribute to workplaces where LGBTQ+ workers do not feel comfortable being themselves, and are more likely to leave, according to Human Rights Campaign (HRC). A 2019 HRC report noted that 46% of LGBTQ+ workers had hidden their sexual preference and/or gender identity at work, and 10% had left jobs because their workplace did not accept LGBTQ+ people.

In the article “The Benefits of Diversity & Inclusion Initiatives,” Risk Management reported that encouraging diversity and inclusion helps all workers and their organizations. Allowing employees to bring their whole selves to the task can be beneficial. As the articled noted, “Often, the outsider believes he or she must bend to the norms of this dominant culture. When this occurs, it mutes creative friction—or creative abrasion, as it is also called—wherein ideas can be challenged productively.” D&I initiatives can encourage employees to more freely innovate and collaborate, can help boost worker retention, and may help minimize the risk of discrimination lawsuits.

But these programs may not be enough to create a working environment that is free of bias and discrimination. Even when companies “fostered an inclusive workplace,” 64% of employees in a 2019 Deloitte survey said that they had experienced or witnessed workplace bias in the past year, and over 50% of LGBT respondents experienced bias at least once a month. Employers can work to address the specific concerns of their LGBT+ workers, including allowing transgender employees to use bathrooms that correspond to their gender identity, regularly updating and reassessing company policies and requiring all employees to review them, and making clear that any form of workplace discrimination is unacceptable and will incur consequences.

Some legal experts worry that workplace discrimination will still take place under the guise of other factors like performance, noting that discrimination based on sexual preference and gender identity is very difficult to prove. The Supreme Court’s decision also left open the possibility that employers could still use a religious exemption to discriminate against LGBTQ+ workers. However, the decision is a critical step forward for LGBTQ+ civil rights and an important moment for workplace diversity and inclusion.

Inclusion Does Not Stop Workplace Bias, Deloitte Survey Shows

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In Deloitte’s 2019 State of Inclusion Survey, 86% of respondents said they felt comfortable being themselves all or most of the time at work, including 85% of women, 87% of Hispanic respondents, 86% of African American respondents, 87% of Asian respondents, 80% of respondents with a disability and 87% of LGBT respondents. But other questions in the company’s survey show a more troubling, less inclusive and productive office environment, and may indicate that simply implementing inclusion initiatives is not enough to prevent workplace bias.

While more than three-fourths of those surveyed also said that they believed their company “fostered an inclusive workplace,” many reported experiencing or witnessing bias (defined as “an unfair prejudice or judgment in favor or against a person or group based on preconceived notions”) in the workplace. In fact, 64% said that they “had experienced bias in their workplaces during the last year” and “also felt they had witnessed bias at work” in the same time frame. A sizable number of respondents—including 56% of LGBT respondents, 54% of respondents with disabilities and 53% of those with military status—also said they had experienced bias at least once a month.

Listening to those who say they have witnessed or experienced bias is especially important. When asked to more specifically categorize the bias they experienced and/or witnessed in the past year, 83% said that the bias in those incidents was indirect and subtle (also called “microaggression”), and therefore less easily identified and addressed. Also, the study found that those employees who belonged to certain communities were more likely to report witnessing bias against those communities than those outside them. For example, 48% of Hispanic respondents, 60% of Asian respondents, and 63% of African American respondents reported witnessing bias based on race or ethnicity, as opposed to only 34% of White, non-Hispanic respondents. Additionally, 40% of LGBT respondents reported witnessing bias based on sexuality, compared to only 23% of straight respondents.

While inclusion initiatives have not eliminated bias, Deloitte stresses that these programs are important and should remain. As Risk Management previously reported in the article “The Benefits of Diversity & Inclusion Initiatives,” not only can fostering diversity and inclusion be beneficial for workers of all backgrounds, it can also encourage employees to share ideas for innovations that can help the company, keep employees from leaving, and insulate the company from accusations of discrimination and reputational damage.

But building a more diverse workforce is only the first step, and does not guarantee that diverse voices are heard or that bias will not occur. Clearly, encouraging inclusion is not enough and more can be done to curtail workplace bias. And employees seeing or experiencing bias at work has serious ramifications for businesses. According to the survey, bias may impact productivity—68% of respondents experiencing or witnessing bias stated that bias negatively affected their productivity, and 70% say bias “has negatively impacted how engaged they feel at work.”

Deloitte says that modeling inclusion and anti-bias behavior in the workplace is essential, stressing the concept of “allyship,” which includes, “supporting others even if your personal identity is not impacted by a specific challenge or is not called upon in a specific situation.” This would include employees or managers listening to their colleagues when they express concerns about bias and addressing incidents of bias when they occur, even if that bias is not apparent to them or directly affecting them or their identity specifically.

According to the survey, 73% of respondents reported feeling comfortable talking about workplace bias, but “when faced with bias, nearly one in three said they ignored bias that they witnessed or experienced.” If businesses foster workplaces where people feel comfortable listening to and engaging honestly with colleagues of different backgrounds, create opportunities for diversity on teams and projects, and most importantly, address bias whenever it occurs, they can move towards a healthier, more productive work environment.

Beyond Pride: Building Strong Diversity and Inclusion Programs

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Today, June 28, marks the 50th anniversary of the Stonewall riots, demonstrations widely considered the most formative event to formally start the fight for LGBTQ rights in New York City and the United States as a whole. As June comes to a close and the city begins celebrating World Pride this weekend, enterprises should be thinking about how to extend the spirit of Pride month and embrace the importance of diversity and inclusion. Long after companies have retired their rainbow logos, they still face increasing need to build and maintain meaningful policies and programs in practice.

Whether looking to start a formal diversity and inclusion initiative, review existing policies, or audit the efficacy of D&I programs, here are some key resources companies can use to build better workplaces for LGBTQ employees and the workforce at large:

RIMS has also been increasingly focused on diversity and inclusion initiatives for both members and the organization itself with Risk Management Magazine content, webinars and conference networking events. Special thanks to Joshua Lamangan, senior membership manager at RIMS, for sharing many of the resources above from his work leading the RIMS Diversity and Inclusion Task Force and Diversity and Inclusion Advisory Council.

Pregnancy-Tracking Apps Pose Challenges for Employees

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As more companies embrace health-tracking apps to encourage healthier habits and drive down healthcare costs, some employees are becoming uncomfortable with the amount and types of data the apps are sharing with their employers, insurance companies and others.

This is especially true for apps that track fertility and pregnancy. As the Washington Post recently reported, these apps collect huge amounts of personal health information, and are not always transparent about who has access to it. The digital rights organization Electronic Frontier Foundation even published a paper in 2017 titled The Pregnancy Panopticon detailing the security and privacy issues with pregnancy-tracking apps. Employers can also pay extra for some pregnancy-tracking apps to provide them with employees’ health information directly, ostensibly to reduce health care spending and improve the company’s ability to plan for the future.

Given the documented workplace discrimination against women who are pregnant or planning to become pregnant, users may worry that the information they provide the apps could impact employment options or treatment by colleagues and managers. Pregnancy-tracking apps also collect infinitely more personal data than traditional health-tracking apps and devices like step-counters or heart rate monitors. This can include everything from what medications users are taking and when they are having sex or their periods, to the color of their cervical fluid and their doctors’ names and locations.

Citing discomfort with providing this level of information, the Washington Post reported some women have even taken steps to obscure their personal details when using the apps, for fear that their employers, insurance companies, health care providers or third parties may have access to their data and could use it against them in some way. They use fake names or fake email addresses and only give the apps select details or provide inaccurate information. Fearing the invasion of their newborn children’s privacy, some have even chosen not to report their children’s births on the apps, despite this impacting their ability to track their own health and that of their newborn on the app.

Like many other apps or online platforms, it may be difficult to parse out exactly what health-tracking apps are doing with users’ information and what you are agreeing to when you sign up. When employers get involved, these issues get even more difficult. By providing incentives—either in the form of tangible rewards like cash or gift cards, or intangible benefits such as looking like a team player—companies may actually discourage their employees from looking closely at the apps’ terms of use or other key details they need to fully inform the choice to participate or not.

While getting more information about employees’ health may offer ways to improve a workforce’s health and reduce treatment costs, companies encouraging their employees to use these apps are also opening themselves up to risks. As noted above, apps are not always transparent as to what information they are storing and how. Depending on the apps’ security practices, employees’ data may be susceptible to hacking or other misuse by third-party or malicious actors. For example, in January 2018, fitness-tracking app Strava released a map of users’ activity that inadvertently exposed sensitive information about military personnel’s locations, including in war zones. Given the kinds of personal details that some apps collect, health app data could also put users at risk of identity theft or other types of fraud.

Tracking, storing, and using workers’ personal health information also exposes employers and insurance companies to a number of risks and liabilities, including third-party data storage vulnerabilities and data breaches. This is especially important in places governed by stringent online data protection regulations like the European Union’s General Data Protection Regulation (GDPR). In addition to the risks of reputation damage, companies that are breached or otherwise expose employees’ personal information could face significant regulatory fines.

People using health-tracking apps, especially fertility-related apps, should weigh the costs and benefits of disclosing personal information against how apps and others are using this information. Companies who encourage their employees to use these apps and collect their personal health details should also be as transparent as possible about how they are using it, and implement measures to protect workers’ personal data to the fullest extent possible and ensure that managers are not using this data to discriminate against workers.