Amazon’s been hard at work, secretly launching its next wave of logistics businesses.
We could spend hours, perhaps even days covering employers’ top 10 employee handbook mistakes. I recently took that wide-ranging topic and boiled it down to a webinar, touching on a number of points including missing at-will disclaimers, salary discussion bans, inflexible leave-of-absence policies, and omitted or ineffective harassment policies.
I also addressed anti-discrimination policies that ignore LGBTQ employment rights. Here’s the legal background on that issue:
- Title VII is silent: No matter how many times you read Title VII, you will not find the words “sexual orientation,” “gender identity” or any other terms that expressly include LGBTQ individuals. At least four different legislative sessions of Congress have introduced ENDA, the Employment Non-Discrimination Act, which would amend Title VII to include “sexual orientation” and “gender identity” to its list of protected classes. The first three times, the bill died in committee. The last time, in 2013, it made it to the floor of the Senate but failed to reach a vote.
- Some states and municipalities have acted: Twenty states and the District of Columbia have their own laws that prohibit sexual orientation and gender identity discrimination in employment. Another two states prohibit just sexual orientation discrimination. Twenty-eight states have no such protections. Additionally, at least 255 cities and counties prohibit discrimination on the basis of sexual orientation and gender identity for employees.
- The EEOC has been processing LGBTQ discrimination charges under Title VII’s sex discrimination prohibition: In July 2015, the EEOC formally announced that it would process LGBTQ charges as sex discrimination charges. According to the EEOC, “When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. … Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”
- Following the EEOC’s lead, most federal courts that have examined the issue have also concluded that Title VII’s prohibition against sex discrimination includes LGBTQ discrimination: The most notable court to weigh in is the (usually conservative) Seventh Circuit Court of Appeals, in Hively v. Ivy Tech Community College. In that court’s words: “The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose ‘interpretation’ of the word ‘sex’ in Title VII to embrace homosexuality.” In other words, changes in society since Title VII became law in 1964 justify reinterpreting the meaning of the word “sex” using 2017’s societal norms. While most federal courts that have examined this issue agree with Hively, there are some outliers, not all courts have had the opportunity to weigh in, and the Supreme Court has not yet offered its definitive opinion.
- The Trump administration is anti-LGBTQ protections: Most recently, the Department of Justice has offered its opinion that because Title VII is silent on the issue, it does not prohibit LGBTQ discrimination.
Thus, the law is far from clear as to whether it is illegal for an employer to discriminate against an employee because of that employee’s sexual orientation or gender identity, although (Trump’s DOJ notwithstanding), it is trending in that direction.
After explaining “the law,” I issued this challenge to webinar attendees: “Be on the right side of history.”
When LGBTQ discrimination becomes universally illegal in the United States (and it will), and history looks back on this era during which this brand of discrimination was questionably legal, on what side of history do you want to be as an employer? The side that condoned (or, worse yet, participated in) this discrimination, or the side that took a stand against it?
Let me make this very clear. There is no good reason to justify anyone being against protecting LGBTQ civil rights.
Your best-case scenario? You don’t like LGBTQ people. Even if I give you every benefit of every doubt, that’s as good as it’s going to get for you if you come out against LGBTQ civil rights.
Worst case? You’re an evil, hate-mongering bigot.
If you doubt me, in place of “LGBTQ,” substitute “African-American,” or “women” or “Jews.”
How does your denial of equal rights sound now? Are you still comfortable with your position?
So, I ask again, on what side of history do you want to be? I know my answer.
No matter how many times you read Title VII, you will not find the words “sexual orientation,” “gender identity” or any other terms that expressly include LGBTQ individuals.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email firstname.lastname@example.org. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
It’s well known the way you start your morning affects the rest of your day
Some see people-shaming here.
Having a roommate who is addicted to theater has its perks. She’s introduced me to shows and revivals of shows that have been so fun to discover, from three different versions of William Shakespeare’s “Much Ado About Nothing” (the best is 2011’s version featuring David Tennant as Benedick and Catherina Tate as Beatrice; it’s a revival set in the 1980s, fashion and all) to satirical, modern shows like “The Book of Mormon” and “Avenue Q.”
Recently she suggested a rock musical called “Spring Awakening,” originally performed on Broadway in 2006, revived in 2015 and based on a play of the same name written by Frank Wedekind in 1891. She broadly described it as “a story about lack of communication.” Since the next Workforce feature I have is about miscommunication, (and since it’s around the time of open enrollment I hear a lot from people about the importance of education and communication) I thought certain lessons from this musical could add something to the larger discussion about communication in the workplace.
I don’t quite know where to start with “Spring Awakening,” because it was a beautiful, emotional, tragic musical that made me think many jumbled thoughts about miscommunication. We watched the 2015 revival, in which a few of the leads were deaf actors to signify how people weren’t listening to them.
The story is set in a small German village at the turn of the century, and the main character and their classmates are young teenagers, all of whom have parents who don’t communicate with them or raise them in a healthy way. The parents never realize their flaws, of course, and their decisions on what to tell their kids, what not to tell their kids, what to do to their kids and what to allow their kids to do leads to many tragic events that did not need to happen.
The parents have the following communication flaws: A mother lies to her daughter constantly to avoid an uncomfortable conversation rather than tell her necessary truths. A father resorts to physical or sexual abuse rather than disciplining his kids in healthy ways when they make small mistakes. A mother and father allow their son to read everything his heart desires but never discuss with him the real-world implications of every theory and philosophy he reads. A father chooses to kick his son out rather than try to understand why he’s not doing well in school.
Back to the workplace, I’ve spoken to several people about communication, or lack thereof, and admittedly the result isn’t quite as tragic as in the rock musical. But the result can be detrimental to employees in different ways.
Here are a few of my workplace communication tips based off the communication flaws in “Spring Awakening.” Some of these stem from conversations with experts from my current story and previous stories, others from readings I’ve come across. I’ll go into more detail about these topics and strategies to deal with communication mishaps in the January issue of Workforce.
Avoiding the Conversation/Telling White Lies: This brings me back to a previous pitch I’ve received about calling high-deductible health plans “HSA-eligible plans.” Being direct and factual with information is important. Don’t be misleading. This is what I wrote on the topic before, and I stand by it:
“That’s not a clever communication strategy; that’s purposely misleading an employee in order to encourage them to do what you want them to do. Yes, the information technically is true. But there is a line between nudging someone toward a decision and misdirecting them to it. It ultimately should be the employee’s choice, based on facts and based on what’s best for them, not based on changing names to make something unpopular sound friendlier.”
Unjustified Anger/Violence: I do not need to explain this one. Although this fit with the theme of communication in the musical, in reality I think this fits in more with other workplace topics populating the media today, like the overflow of sexual harassment allegations against powerful people or workplace bullying.
Information Overload: This is the major theme of the upcoming feature. People have so many messages coming to them simultaneously, from work and from their personal lives. Meanwhile, their responsibilities aren’t going anywhere. How can you as an employer make sure your message sticks? More on that in January.
Not Getting to the Root of the Problem: One source recently gave a good example of this. Heidi Guetzkow, national program manager, health risk solutions at Lockton Benefit Group, explained a recent study which found that low-wage earners were not taking advantage of wellness programs and HSAs at their companies, even though participation meant up to $1,000 a year of extra money. Here was a group that truly could benefit but was not participating.
When Guetzkow dug deeper in the data, she found that the low-wage earners were spending on average 20 hours or more a week on caregiving. They were so focused on coming in, getting the job done and moving on to their caregiving responsibilities that they didn’t have time to participate in these programs.
I don’t have an answer for this. But maybe no matter how much thought you put into your communication strategy, you’ll come across situations like this where lack of participation has nothing to do with communication at all. People only have so much time in the day. I’d be curious to see if a company that decides to include caregivers in a paid family leave policy would have different results than the situation noted above.
Final thoughts: Don’t watch “Spring Awakening” unless you’re feeling up to, as my roommate so eloquently puts it, “a major bummer.” But do make sure you’re communicating with employees, during open enrollment and throughout the year. Be direct, open and honest and don’t look down on them for being perplexed. There’s a lot to take in.
Andie Burjek is a Workforce associate editor. Comment below or email email@example.com.
It seemed like it was going to be a quiet Christmas for the coffee chain.