'Employers shouldn't rely on a one-size-fits-all approach and expect one person to speak for the whole community'
Employers have many legal obligations to their employees, including ensuring that the workplace is free from discrimination. This includes discrimination based on sexual orientation and identity – which is becoming a concern on several fronts in society.
Recently, the LGBTQ2S+ community has faced some challenges as some public bodies and organizations seem to have it in their sights. The governments of New Brunswick and Saskatchewan, for example, have made moves to prevent children under the age of 16 from changing their names or pronouns in school without parental permission. Elsewhere, battles have erupted in some Catholic school boards over the flying of the Pride flag, while instances of municipalities taking down symbols celebrating Pride have been in the news.
While these examples have occurred in school environments and the public realm, they can be relevant in the workplace context in relation to employer policies and practices. Recognizing diversity and celebrating events such as Pride can build a positive workplace culture, but changing direction like some municipalities and school boards have done could raise some issues, according to employment lawyer Nhi Huynh of Williams HR Law in the Greater Toronto Area.
“[Stopping Pride recognition] is not automatically discriminatory, it really depends on what kind of policies that the employer has in place and whether it’s different from what the employer normally does,” says Huynh. “For example, does the employer recognize and celebrate other causes and, if so, stopping recognition or celebration of Pride can create exposure to human rights claims.”
Changing course on Pride
Recognizing and celebrating Pride can help employers show their LGBTQ2S+ employees that they support them, so another issue that could arise from stopping that recognition would be negative effects on workplace culture that could cause employees to feel unsafe, adds Huynh.
“[Changing course on Pride recognition] affects not just the dignity and self-worth of [LGBTQ2S+ employees], but oftentimes they won't feel safe in their workplace,” she says. “How is that going to affect the workplace if you're sending the message that you're not going to be supporting that community?
“They're going to think that they can't come forward with concerns on discriminatory practices and potentially harassment that's not being addressed, because the employer hasn't properly trained themselves to understand or it might be downplaying an issue, for example.”
However, Huynh points out that employers have to balance the human rights of all their employees, so they may have to take into account others when celebrating Pride and the LGBTQ2S+ community.
“It can be risky to treat an employee adversely for recognizing or celebrating Pride,” she says. “On the other side of the coin, it could be discriminatory for employers to force an employee to celebrate Pride if doing so conflicts with that employee's religious beliefs - that's going to create liability issues.”
Personal identity and human rights
For employers, managing issues related to identity and sexual orientation can be different than other human rights grounds because they’re so intimately tied to an individual, says Huynh, who adds that different elements of the LGBTQ2S+ community have their own unique characteristics and challenges.
“An employer shouldn't assume that someone needs to be “out” to be afforded protection, and it shouldn’t assume that certain issues that are commonly a problem for one part of the community are going to be the same for another part of the community,” she says. “Employers shouldn't rely on a one-size-fits-all approach and don't expect one person to speak for the whole community.”
While Pride and recognition of gay rights are more established, other parts of the LGBTQ2S+ community may be less familiar for employers. For example, transgender issues have gained more awareness in recent times, so employers may be behind in their policies and practices in considering the rights of transgender employees.
“I tend to see a lack of gender-neutral language in policies – for example, a lot of workplace policies still use “he/she” and “him/her,” but that's not going to be inclusive of non-binary people,” says Huynh. “Similarly, you'll see sometimes see gendered dress codes.”
Misgendering and pronouns
Misgendering should be not only addressed in written policies, but also in everyday interactions in the workplace, adds Huynh.
“Employers should understand misgendering as it has been recognized as a form of discrimination that can attract damages,” she says. “When an employee tells an employer their pronouns, it's not just an option for employers or other employees to use them - I will even say the phrase ‘preferred pronouns’ is something employers should consider changing, as when someone shares their pronouns it isn't a preference, it's a statement of fact.
“Employers should lead by example and normalize sharing pronouns,” says Huynh. “Everyone's not the same and it can feel hurtful to some individuals to have to state what their pronouns are, so that's why I say don't require it, but definitely normalize it so people feel safe to do so if that's what they choose to do.”
Normalizing proper pronoun use can be helped by training employees and reinforcing it as part of the workplace culture, because if transgender employees are misgendered by co-workers or management, even if it’s not intentional, it can rob them of their dignity and self-identify, says Huynh, adding that a related misstep for employers is “dead-naming” – using someone’s birth name if not legally changed by the employee instead of the name they associate with their identity, according to Huynh.
“Employers have access to an employee's legal name or gender marker and that might not match how the employee self-identifies now,” she says. “It's not just a matter of respecting their privacy, but it can really invalidate a person who's transgender or non-binary if you expose that information, and that's something that really goes to the heart of their self-identity.”
Protect employee privacy
Another misstep employers can make is singling someone out, when they’re not necessarily willing to be, in what the employer sees as promoting their support of the community.
“Using an individual from the community as a token to show that the employer’s workplace is diverse, and using that person's picture, for example, to represent that diversity without that person's express permission – that’s a problem that could be compounded by the fact that the employer risks outing a person who might not have done that themselves.”
It can be a learning process for employers who are relatively unfamiliar with the LGBTQ2S+ community in making them feel welcome, so they may at times be approached or called out on how they’re supporting them.
“Take that as an opportunity to listen - hopefully, that means the employer has something in place that encourages these employees to come forward,” says Huynh. “Sometimes they don't follow the typical complaints procedure, but there could be multiple reasons for employees not to do that as they might not feel safe - it shouldn't impact how seriously an employer takes their complaints and it's important for the employer not to downplay the impact on employees.”
“We've seen this happen, unfortunately, where employers unintentionally take a heteronormative approach when dealing with an employee's complaint and assuming that the impact was minimal or non-existent,” she adds. “And if an employer doesn’t have the requisite knowledge to deal with something, they should reach out to someone who does before they implement any type of action.”
Invest in knowledge
A key for employers to avoid being caught off-guard by discriminatory issues faced by LTBTQ2S+ employees is to invest in organizational LGBTQ2S+ competency and require that type of knowledge for managerial roles, according to Huynh.
“Take the time to learn how to make the workplace safe, diverse and inclusive, and don't expect employees in the community to do that work for you - that can create further emotional labour for them,” she says.
Compensation is another area where employers may not be aware of hidden biases, so pay equity should be assessed, says Huynh.
“There have been studies that have shown cisgendered heterosexual men are paid more than gay men, who are paid more than lesbian women, who are paid more than bisexual men, who are paid more than bisexual women,” she says. “And then they're all paid more than an individual who's transgender, whether that's intentional or not - employers should consider the biases that might be at play if this type of trend is reflected in their own workplace.”
The most likely source of discrimination liability for the employer – and negative impact for employee morale – is workplace harassment. Huynh says that, in her experience, microaggressions are not in every employer’s vocabulary, but the harm done to employees can build up.
“An employer can be held liable for not protecting their employees in cases of [microaggressions and repeated harassment],” says Huynh. “For example, light-hearted joking or asking a gay couple how is parenting going to work for them might seem innocent on the surface but it really isn't something you would ask heterosexual couples, and that’s problematic.”
To combat discrimination against LGBTQ2S+ employees, it's important to create safe feedback and complaints processes for employees to come forward without fear of reprisal, and then take it farther by taking proactive steps to connect to the community for hiring opportunities, according to Huynh.
“It's important to take the time to understand what can constitute discrimination and harassment and put measures in place to protect your employees and train them properly on what you know is not acceptable behavior,” she says. “I'd say those in the community may experience discrimination and harassment at every stage of the employment process.”
