Recognizing LGBT workplace rights: Is your business prepared?

Everywhere you look lately, LGBT rights are making headlines. States as diverse as Wisconsin, Texas, Kentucky, Arizona and Kansas have been in the news for their legislative attempts to either increase or limit the rights of LGBT citizens. 

At a national level, there have been some major changes regarding LGBT rights. Earlier this year, the U.S. government expanded the rights of same-sex spouses in the federal context, and last year a U.S. Supreme Court ruling struck down the 1996 Defense of Marriage Act (DOMA), which had blocked federal recognition of gay marriages. Regarding health insurance benefits, the U.S. Department of Health and Human Services announced on March 14, 2014, that, under the Affordable Care Act, insurance companies which offer benefits to opposite sex spouses must offer such benefits to same-sex spouses by Jan. 1, 2015. 

In December 2013, a federal judge in Ohio ordered authorities to recognize gay marriages on death certificates, despite Ohio’s ban against same-sex marriages. In April 2014, another federal judge ruled that Ohio must recognize same-sex marriages performed in other states. Further, state lawmakers in Ohio recently withdrew legislation mimicking a controversial Arizona bill proposing to allow those who assert religious beliefs to refuse service to LGBT community members. 

Despite this changing landscape, little has changed, to date, in federal or Ohio employment discrimination laws as it relates to LGBT employees in the private sector, as well as many parts of the public sector. There are signs, however, that this is changing. For instance, an employer with an Equal Employment Opportunity (EEO) statement or policy may consider including a statement prohibiting discrimination based upon sexual orientation or gender identity. Likewise for policies such as sexual harassment, workplace violence and anti-discrimination; and training employees, supervisors and subordinates alike (but in different training sessions) on the revised policies. 

The federal government already prohibits employment discrimination against federal government employees based on sexual orientation only. In addition, President Barack Obama recently signed an executive order that prohibits job discrimination by federal contractors on the basis of sexual orientation and gender identity. And Congress has revived its attempt to pass the Employee Non-Discrimination Act, or ENDA, which would protect all employees (private and public sector) from job discrimination based on sexual orientation. 

In Ohio, an executive order signed by Gov. John Kasich establishes an anti-discrimination policy in state government employment only. This order prohibits discrimination in the workplace on the basis of sexual orientation, but it does not include language prohibiting discrimination on the basis of gender identity. 

In addition, at a municipal level, there are a dozen municipalities (including many of Ohio’s larger cities) that prohibit job discrimination based on sexual orientation and/or general identity in both private and public employment. These include the cities of Athens, Bowling Green, Canton, Cincinnati, Cleveland, Columbus, Coshocton, Dayton, Newark, Oxford and Toledo, as well as the Village of Yellow Springs.

There are five Ohio municipalities that prohibit discrimination based on sexual orientation and/or gender identity in public employment only: Akron, Cleveland Heights, Gahanna, Hamilton and Oberlin.

Legislative change definitely is coming. Regardless of when it comes, Ohio employers may want to start instituting changes in their company policies regarding LGBT employees.

Ways employers can address LGBT rights include:

learning what laws do currently apply. Employers should consult legal counsel to find out what laws apply;

Should you decide to get out in front of this issue and enact policies that exceed what is currently required by law, keep in mind that, by enacting these policies, you provide your employees with enforceable rights. Thus, be certain you are enacting reasonable policies and provide the proper training to managers and supervisors on the implementation and enforcement of the policies. And, as always, consult with legal counsel prior to making any formal changes.

Many Ohio employers have determined that discrimination of any kind can detract from employee morale, recruitment and retention, and, ultimately, productivity. As employers have discovered over time, the best business and employment decisions are based on objective metrics and operational needs.