10-11-2023
By Jody Stein, Esq.
From “Don’t Ask, Don’t Tell”[1] in 1993 to “Don’t Say Gay”[2] in 2023, the LGBTQ+ community has faced sustained legislative efforts to limit their ability to live openly and freely. In 2020, the U.S. Supreme Court held that Title VII protects employees from discrimination based on sexual orientation and gender identity. Since that decision, state legislative efforts targeting the LGBTQ+ community have increased dramatically. While most of these laws are not directed at the workplace, employers cannot ignore the negative impact they have on the LGBTQ+ community and, consequently, their employees. We will begin by looking at the Supreme Court’s decision in Bostock v. Clayton County (2020), how some conservative states are working to limit the rights of the LGBTQ+ community, the potential ramifications of these proposed laws on employers, and what employers can do to counteract it.
Laws Targeting the LGBTQ+ Community
The Supreme Court’s decision in Bostock v. Clayton County[3] marked a significant step forward for LGBTQ+ employees’ workplace rights. In that case, the Court considered whether Title VII’s prohibition against sex discrimination in the workplace included discrimination based on sexual orientation and gender identity. The Court asserted that: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Thus, the Court concluded that Title VII necessarily protects employees from discrimination based on their sexual orientation and their gender identity. Prior to the Bostock decision, less than half of U.S. states offered workers any protection from discrimination based on sexual orientation or gender identity.[4] This decision expanded protection for many LGBTQ+ employees across the U.S.
However, in 2022 and 2023, various state legislatures have considered a substantial number of new laws that would restrict the LGBTQ+ community’s rights. They are plainly focused on the transgender community, seeking to prevent them from participating in sports and using a bathroom based on their gender identity. These proposals heighten public scrutiny toward transgender individuals, resulting in increased hostility toward an already vulnerable community.
Legislators also want to control speech about sexual orientation and gender identity. In 2022, CNN reported a significant increase in bills introduced to limit classroom conversations about LGBTQ+-related topics.[5] State legislatures introduced 44 bills that year on this issue, compared to 16 bills in 2021. Florida passed its “Don’t Say Gay” law barring teachers from discussing sexual orientation and gender identity with students in public schools, including high school students (subject to limited exceptions). These types of bills have ramifications. “Policies that restrict discussion of LGBTQ+ issues and representation of LGBTQ+ individuals are likely to make schools less welcoming to the nation's estimated 2 million LGBTQ+ youth.”[6]
State legislatures have again escalated the number of proposed laws targeting LGBTQ+ individuals in 2023, at least double that of 2022. The Human Rights Campaign (HRC) reports that legislators across the country introduced over 520 anti-LGBTQ+ bills in the first five months of 2023, with 220 of those bills specifically focused on transgender and non-binary people.[7] U.S. states passed 70 laws aimed at restricting the LGBTQ+ community, including 15 laws banning gender-affirming care for transgender youth, seven laws requiring or allowing the misgendering of transgender students, two laws targeting drag performances, three laws giving license to discriminate, and four laws censoring the school curriculum in the first half of 2023.[8] In May 2023, Montana Governor Greg Gianforte signed a new law that defines sex as solely binary, determined by reproductive capacity, and unchangeable. With Montana’s restricted definition, the state’s anti-discrimination laws may not protect transgender and gender-nonconforming individuals, and it implicitly grants permission for increased hostility and scrutiny on the members of that community.[9] Tennessee, North Dakota, and Kansas have similar laws. The Florida State Board of Education recently passed a regulation requiring colleges to terminate the employment of any employees who do not use the bathroom that corresponds to the gender assigned to them at birth.[10]
While the majority of the proposed anti-LGBTQ+ laws have thus far not passed, those efforts and the associated headlines reflect ongoing efforts to diminish the LGBTQ+ community’s rights. The Supreme Court’s recent decision in 303 Creative LLC v. Elenis[11] appeared to support these endeavors. In 303 Creative, the Court upheld the right of a website developer to refuse all same-sex wedding announcements. Colorado, like many states, has a public accommodations anti-discrimination law that prohibits businesses offering goods and services to the public from discriminating against protected classes. This law prevents businesses from denying service because of sexual orientation. The Court held the website developer’s graphic designs qualified as expressive speech, which is protected from government restriction by the First Amendment. Thus, Colorado could not force her to “speak” against her religious beliefs. It is too soon to fully understand the decision’s reach and how many businesses will interpret it as a right to discriminate against individuals based on sexual orientation and gender identity. However, legal experts predict the decision will result in additional attempts to discriminate against the LGBTQ+ community.
The Impact of Anti-LGBTQ+ Legislation on Employees in the Workplace
The anti-LGBTQ+ legislative actions across the country unavoidably impacts workplaces. LGBTQ+ workers are paying attention to these efforts, and it is effecting their decision-making. CNBC reports that the increase in anti-LGBTQ+ bills has “left workers concerned for their safety and benefits.”[12] Moreover, an Indeed survey shows that 65% of surveyed LGBTQ+ workers are concerned about how anti-LGBTQ+ legislation will impact their employment opportunities.[13] As a result, “77 percent of LGBTQ+ workers would hesitate to apply for a position based in a state with anti-LBGTQ+ legislation, and 75% said they would hesitate to apply for a company that is headquartered in a state with anti-LGBTQ+ legislation.”[14]
Moreover, LGBTQ+ individuals are experiencing an increase in workplace discrimination. A May 2023 Glassdoor poll of 6,000 LGBTQ+ employees revealed more than half of LGBTQ+ workers have experienced or witnessed anti-LGBTQ+ comments, a 53% increase from 2019.[15] Similarly, Deloitte’s Global 2023 LGBT+ Inclusion @Work report surveyed over 5,400 non-Deloitte employees from the LGBTQ+ community. Less than half of the individuals surveyed felt comfortable being fully out at work, particularly to direct managers and more senior leaders.[16] They expressed concern about being treated differently. Forty-three percent of those surveyed experienced non-inclusive behaviors at work. Yet, four in ten did not escalate their concerns because they did not believe employers would take them seriously, would make the situation worse, or would take any action.[17]
The fear of discrimination has negative impacts on these individuals. When members of the LGBTQ+ community do not feel safe, they may hide their personal relationships, delay health care, change the way they dress, and otherwise alter themselves to fit in.[18] Discrimination has “substantial adverse effects on economic, physical, and mental well-being, and many LGBTQ+ individuals alter their behavior to avoid experiencing discrimination.”[19]
There is a lot at stake for employers when trying to recruit new talent: an estimated 7.1% of U.S. adults identify as a member of the LGBTQ+ community.[20] Many companies have acknowledged the negative impact of anti-LGBTQ+ legislation on their businesses. Three hundred and thirty-one large employers signed HRC’s Business Statement Opposing Anti-LBGTQ State Legislation.[21] In this statement, these businesses express concern about the bills being introduced across the country to single out LGBTQ+ individuals for exclusion or differential treatment. They state:
“These bills would harm our team members and their families, stripping them of opportunities and making them feel unwelcome and at risk in their own communities. As such, it can be exceedingly difficult for us to recruit the most qualified candidates for jobs in states that pursue such laws, and these measures can place substantial burdens on the families of our employees who already reside in these states. Legislation promoting discrimination directly affects our businesses, whether or not it occurs in the workplace.”[22]
To attract a wide range of the best candidates, employers have to consider whether they are doing what they can to welcome this community. Publicly acknowledging the harm this type of legislation may have and taking affirmative steps reflecting support can demonstrate to the LGBTQ+ community that they are welcomed and safe in workplaces. Eighty-seven percent of LGBTQ+ respondents to an Indeed poll said they research employers before applying to ensure they are LGBTQ+ friendly, with 45% checking whether inclusive employee benefits are offered.[23] Gen Z and millennial workers especially look at an employer’s commitment to diversity and inclusion.[24]
How Employers Can Take Positive Welcoming Steps
Employers have the power to improve the workplace for the LGBTQ+ community, and they can do more against the backdrop of so much legislation aimed at restricting the choices members of the LGBTQ+ community may make and how they behave. In its statement about its survey, Deloitte said, “The survey findings reinforce that when organizations foster diversity and demonstrate a commitment to LGBT+ inclusion, it can have a positive impact on the lives and experiences of all employees in the workplace.”[25]
A 2023 survey by the communications firm Edelman found that the increasing hostility toward LGBTQ+ individuals has made companies more nervous to take a firm public stance.[26] However, its data shows companies should be more concerned about the ramifications of not actively and publicly supporting these issues. Respondents indicated that they were more likely to work for a company that demonstrates a commitment to expanding and protecting LGBTQ+ rights, with Gen Z indicating particularly strong support.[27]
All employers can positively attract a wider talent pool that includes the LGBTQ+ community by taking these steps.
- Attend LGBTQ+ career fairs because employees and potential candidates notice who is actively working to hire from the community.
- Incorporate gender-neutral language and guidelines in employee handbooks, particularly gender-affirming restrooms and dress code policies.
- Provide inclusive healthcare benefits, including affirmative mental health care, transgender health care, and inclusive fertility and family-building benefits.
- Create an environment with zero tolerance for discrimination, including against LGBTQ+ employees.
- Provide DEI training that is in-depth, helping employees become more aware of their unconscious bias, teaching them to call out inappropriate and harmful behavior, and learning to avoid misgendering coworkers.
- Show real support through executive leaders speaking out about LGBTQ+ inclusion.
- Create employee resources groups for marginalized groups within the workforce.
- Speaking out against anti-LGBTQ+ legislation both within the organization and publicly.