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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.

Working to Close the Gender Pay Gap

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U.S. government regulators at the Equal Employment Opportunity Commission (EEOC) are requiring all private companies with over 100 workers to provide information including their workers’ genders, race and ethnicity as it relates to compensation. The EEOC uses this information, in part, to measure any pay gaps between employees that could be based on these characteristics. The EEOC instituted the requirement in 2016, and it covers about 70,000 employers and 54 million workers.

The Trump administration halted the rule’s implementation in 2017, but advocacy groups sued the EEOC, and in April, a federal district judge ordered its reinstatement. The rule requires that employers submit information about employees’ median pay and hours in various positions within the company, from sales staff to executives, both full-time and part-time.

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The policy is intended to make companies confront the actual data about their gender and racial pay gaps, which they may be reticent to do. Former EEOC commissioner Jenny Yang said, “Right now, there’s a strong incentive to not look under the hood, because if you find problems, many feel they’re under an obligation to immediately fix it, so they’d rather not.”

Not all companies are so unwilling to address the issue. For example, Nordstrom announced that it had achieved full pay equity, but that it was still working to ensure an equal share of men and women in leadership and top-paying jobs.

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Intel also announced “full representation” in its workforce—that the makeup of their workers mirrors the available talent pool—and pay equity for male and female employees.

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At the same time, U.S. pension funds and investors are similarly applying pressure to companies over their pay gaps. The pension funds for the states of Connecticut, Minnesota and Oregon are reportedly pushing for companies to disclose information about the promotion and compensation gaps within their ranks, as are private investment firms. These investors see companies’ insufficient gender equality as a risk that affects their bottom line. Tobias Read, treasurer of Oregon, told the Financial Times, “Gender equality, if we are not paying attention to that as a risk, we are not living up to our fiduciary responsibilities.”

Investment firm Arjuna Capital has filed multiple shareholder proposals to the various companies it invests in, asking for them to disclose median pay information related to gender and race. In response, Citigroup disclosed that its female employees make 29% less than their male colleagues, and pledged to continue working to increase representation of women and minorities within the company. Famously, the firm State Street Global Advisors put a bronze statue of a small girl near the Wall Street bull to raise awareness of index funds of companies that have gender-diverse leadership. Reportedly, as a result of the publicity, hundreds of companies worldwide moved to add at least one woman to their boards.

Investors making decisions based on environmental, social and governance (ESG) factors has been a growing trend, as Risk Management reported in the May article “Getting Serious About ESG Risks.” As that article stated, investors have used their clout to make companies focus on issues like climate change, and start considering not only the affect that environmental changes have on the business, but also the effect the company’s operations have on the environment. These considerations are changing risk managers’ evaluations and calculations of their companies’ risk profiles, and slowly changing companies’ gender diversity.

A lack of gender equality in pay or representation can not only lead to reputational damage for a company, but companies that do not have diverse workforces at all levels can miss out on the innovation that diversity and inclusion can bring. And this does not just mean bodies in the room—it means actually listening to different voices from different groups of people.

McDonald’s Sued for Sexual Harassment at Franchises

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This week, 25 women in 20 cities across the United States brought sexual harassment charges and lawsuits against fast food giant McDonald’s with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that the company has neglected its duty to protect employees from harassment. In fact, the women claim, the company has often punished those who have spoken out against abuses, including cutting their hours and revoking promotion or training opportunities.

These are hardly the first claims that female workers have brought against the restaurant chain. In the past 10 years, the EEOC has filed multiple lawsuits against McDonald’s for allegations related to sexual harassment and inappropriate behavior at franchises across the country. In May 2018, 10 women filed harassment complaints, including “alleged groping, propositions for sex, indecent exposure and lewd comments by supervisors,” according to the Associated Press. They too alleged that they faced negative consequences when they objected to these abuses. Workers also launched strikes to protest against sexual harassment and other inappropriate treatment in May 2015 in Chicago and September 2018 in 10 cities.

These lawsuits correspond with a planned strike on Thursday, May 23, to protest low wages and the company’s refusal to get involved with franchises’ pay decisions and negotiations, as well as workers’ ability to create a union. The wider protest movement Fight for 15 (named for their demand for a $15 minimum wage) has backed the sexual harassment claims and lawsuits, as have the National Women’s Law Center’s Time’s Up Legal Defense Fund, the ACLU, and several law firms.

Because it operates on a franchise basis, McDonald’s has said that it has no responsibility or liability for any abuses (or wage decisions) at individual locations—that it is not a “joint employer” with its franchises, and franchise employees are not direct McDonald’s employees. In April, the Trump administration announced that it would reverse Obama-era interpretations of what qualified as a joint employer, which had made chains more liable for labor violations at their franchises. The Trump administration change is still in the proposal stage, but could clarify who can be held responsible for sexual harassment and wage disputes, relying on four factors: who can hire/fire the employee, who has control over work schedules, who sets pay rates and who maintains employment records. This change could make chain companies significantly less responsible for conduct at their franchises.

McDonald’s has stated that it provides comprehensive policies and training to help franchises prevent sexual harassment. The company also said that it has brought in experts to help “evolve” those processes, and set up an anonymous hotline to report harassment. However, advocates say that without visible enforcement of its policies, these steps are not enough. Workers at low-paying jobs, including fast food, are uniquely vulnerable to harassment and other workplace abuses. One 2016 study found that 40% of female fast food workers had been sexually harassed in the workplace, and that this was “substantially higher than in workplaces overall.” Additionally, the study found that 42% of female fast food workers who were harassed in their workplace “feel forced to accept it because they can’t afford to lose their job,” 21% said they faced negative professional consequences after reporting the inappropriate behavior, and 45% said they experienced physical and mental health problems as a result of workplace harassment.

As Risk Management has covered before, no matter what the industry, companies and their HR departments have the obligation to keep their employees safe from workplace harassment, and should implement strict HR policies to address it. These policies should include clear reporting guidelines (not just to tell an immediate supervisor, who is often the person harassing the employee) and strong disciplinary measures, as well as mandatory and regular anti-harassment training. For risk management and HR professionals reviewing their existing policies, these tips can help ensure they foster a workplace culture in which reporting harassment is encouraged and illegal or inappropriate conduct is swiftly and effectively investigated and punished.

Tips to Prepare Your Organization For An Older Workforce

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People are living and working longer today than in the agricultural and industrial ages. The growth in the number and percentage of individuals over 60 and 80 years of age is already having a global impact.

From 1980 to 2017, the number of individuals over the age of 60 doubled to roughly 900 million. This segment of the world’s population will double again by 2050 to nearly 2 billion, according to the 2017 World Population Prospects report by the Department of Economic and Social Affairs of the United Nations Secretariat.

Risk professionals can prepare their organizations for the coming changes and opportunities of an older workforce with the following strategies:

  1. Customize a workplace safety program. Organizations can utilize various levels and different methods of training to improve safety awareness.
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    These include new hire training, annual mandatory compliance refreshers, on-the-job training, shadowing and formal mentoring programs, educational programs, and certifications. Training can focus on areas such as safety awareness, new technology, ergonomics and workstation setup, life skills, and other soft knowledge. This will also help with safety in general among the entire staff.

  1. Update the education and onboarding process. An important consideration is how different generations of employees learn, so specific training methods tailored to each generational group can be offered. Where online training modules may work for younger employees, older employees may prefer on-the-job or in-person training. It is up to each company to best identify the methods for training its workforce so the content of the training is effectively delivered and understood by its intended audience.
  2. Review training styles. In addition to receiving ongoing training, older employees may feel more engaged if they are asked to teach newer or less experienced employees. One area often overlooked is training for managers who may have older employees under their supervision. Much has been written about training and approaching millennials, however, the reverse is an emerging risk. Companies should begin focusing efforts on how to relate to and the best way to supervise older workers. This is an area of opportunity to enhance a company’s culture and develop the employee-employer relationship.
  1. Know a role’s physical demands. Employers need to ensure they have a good understanding of the actual physical demands of each job position in addition to the physical limitations of individual employees.
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    Post-offer and pre-employment functional capacity exams are recommended for all age groups in industrial and manufacturing sectors. Job rotation is an important safety tool, and can be used for all age groups in an effort to break up the monotonous nature of the work, avoid fatigue, and ultimately develop a well-rounded staff that can cover gaps as needed.

  1. Consider the intersection of technology, comfort and well-being. There are many low- and no-cost ideas that can make the workload more manageable for older employees. For example, in its Dingolfing, Germany plant, BMW hires older workers on an auto assembly line with accommodations for their age such as larger computer screens, special shoes, and chairs for some operations. And Microsoft offers an online Guide for Individuals with Age-Related Impairments, showing older workers how to create slower-moving pointers or magnified screen displays by adjusting their computer’s settings. Standard workstations can be improved with ergonomics in mind. Features like built-in back support in office chairs, standing desks, lighting created to minimize shadows and dark zones, and desks that are easily adjustable all contribute to employees’ comfort and minimize discomfort. On-site clinics save time and are geared toward prevention as well as early disease detection. Investing in the health of all employees through wellness programs is a timeless and ageless benefit and will contribute to productivity and reduce costs.
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  1. Promote an age-diverse business culture by recognizing and appreciating the skills/values of older workers. There are common misunderstanding and stereotypes with older employees that they are less efficient than their younger co-workers. However, from the Organisation for Economic Co-operation (OECD) in 2016 that the working proficiency (in both literacy and numeracy) of older employees is actually not significantly lower than their younger peers. In countries like the U.S., the proficiency of older workers is even at the same level as younger employees (see below charts). A follow-up study in 2018 by OECD indicated that older employees are more likely to involve in more complex tasks, such as supervise colleagues, have higher task discretion, use planning skills and influence others, which makes them as valuable assets as their younger co-workers. So it is important to promote an age-diverse business culture to appreciate the skills and value of older workers.
  1. Improve training against discrimination and negative attitudes to older workers on hiring, termination, compensation, and promotion. As risk management professionals, it is important to remind your organizations to review and improve the policy against discrimination and negative attitudes to older employees, in order to mitigate the potential legal risk. A 2013 AARP study indicated that “64% of U.S. workers have either experienced or observed age discrimination.” Given this background, in 2016, EEOC received 20,857 charges of age discrimination, which counted for more than 20% of all discrimination charges received by EEOC.

As the global working population continue to grow older, corporations around the world could expect to see more age discrimination litigations to come. Risk managers can play an important role by taking initiatives to help their organizations against discrimination and negative attitudes to older employees.

Several members of the RIMS International Council contributed to this article.