Oh my gosh, employees do not have to disclose their sexual orientation or gender identity. However, it is not too much information to know the sexual orientation and gender identity of one's employees. Employers should have an increased awareness of the rights of lesbian, gay, bisexual and transgender employees to establish and communicate their stance to protect those rights.
The great majority of large employers and many smaller employers include sexual orientation and gender identity under their anti-discrimination policies. Federal employees and federal contractors are required to protect employees from sexual orientation and gender identity discrimination. Several states, cities and counties protect sexual orientation and gender identity in private and public employment.
Sexual orientation and gender identity are not yet found in the list of classes protected by the Equal Employment Opportunity Commission (EEOC). However, among other cases the Price Waterhouse v. Hopkins landmark decision established sex stereotyping as sex discrimination in 1989.
EEOC includes the protection of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions as a priority of their Strategic Enforcement Plan. The agency has formed an advisory group to train staff, conduct outreach efforts and provide input to its litigators.
EEOC has filed a number of lawsuits and briefs addressing LGBT related discrimination issues. Among those are cases involving transgender applicants and employees. Transgender is a term used to describe individuals whose gender identity differs from the gender they were assigned at birth. Transgender people need not alter their bodies or "transition" to be considered transgender.
The Lusardi v. McHugh decision makes it clear that one does not need to surgically transition to be protected as a transgender. Tamara Lusardi worked for the Department of the Army. She met with management to discuss her transition and agreed to initially use the executive bathroom. Management understood that would be the situation until she surgically completed her transition. She alleged disparate treatment and hostile work environment because she was forbidden to use the female bathroom and a team leader repeatedly referred to her by her former male name and male pronouns. The outcome: "Title VII prohibits employers from relying on speculation, stereotypes and co-workers' preferences when limiting a transgender female employee's right to use a female restroom."
EEOC v. Lakeland Eye Clinic alleged the clinic terminated Michelle Branson based on sex discrimination. Michelle hired in as Michael and began to transition by changing her name to Michelle, wearing make-up and feminine clothing. After she disclosed she was transitioning, her coworkers bullied her and her position was eliminated. Shortly after her termination, her position was filled with a male. The case settled. The company changed its discrimination policy, added a policy to better treat gender identity complaints and provides related annual all employee training.
Part of the bullying was mocking the individual by using the wrong pronoun, and calling her Michael. Employers must teach employees that these behaviors are not only disrespectful, but also discriminatory. Learn more and teach employees about the rights of all individuals. Here's a start: EEOC's Enforcement Protections.