LGBTQ Employees Face A Double Stigma

By:  Amy Epstein Gluck

Last year, when I wrote about destigmatizing mental health issues, I informed you that one in four adults in the U.S. suffer from some type of mental disability.

When we talked about sexual harassment being an epidemic—and this was pre-Weinstein!—I mentioned EEOC-reported testimony that one in four women face harassment in the workplace.

Well, guess what?  One in four LGBTQ employees report experiencing workplace discrimination in the past five years.

Why? Aren’t There Positive Gains in LGBTQ Inclusivity?

Yet,  LGBTQ-supportive policies and workplace climates are linked to less discrimination against LGBTQ employees and more candid conversations about being LGBTQ. Less discrimination and more openness, in turn, are also linked to all of those intangibles that employers love:  greater job commitment, improved workplace relationships, increased job satisfaction, improved health outcomes, and increased productivity among LGBTQ employees.

Indeed, recent years have seen increased workplace protections.  I read here that Fortune 500 companies with policies protecting LGBTQ+ discrimination grew from 4% in 1996 to 91% in 2019 and gender identity discrimination grew from 3% in 2002 to 83% in 2019. Companies have begun creating employee resource groups (ERGs) for LGBTQ+ employees, explicitly seeking recruitment of diverse employees, and supporting LBGTQ+ causes and organizations.

Sounds great, right?

Yeah, But Federal Law Does Not Prohibit Explicitly LGBTQ Discrimination, and What About The State Splits You’ve Mentioned?

Well…as we know, federal law does not prohibit employment discrimination based on sexual orientation, gender identity, or gender expression. In fact,

  • 27% of transgender people who held or applied for a job in the last year reported being fired, not hired, or denied a promotion due to their gender identity.
  • More than three-quarters of transgender employees take steps to avoid mistreatment in the workplace.
  • Nearly 1 in 10 LGBTQ employees have left a job because the environment was unwelcoming.
  • 52.8% of LGBTQ employees report that discrimination negatively affected their work environment.
  • LGBTQ employees who make it into senior management are much more likely to be out than closeted: 71% compared to 28% of their closeted counterparts.

You can see this stats and more right here.

Moreover, state laws are sharply divided on their workplace protections:

  • 21 states plus D.C. have laws prohibiting employment discrimination based on sexual orientation and gender identity;
  • 2 states explicitly interpret existing prohibition on sex discrimination to include sexual orientation and/or gender identity;
  • 1 state law explicitly prohibits discrimination based on sexual orientation only;
  • 26 states have explicit prohibitions for discrimination based on sexual orientation or gender identity in state law.

What’s A Result of All of This Controversy?

Discrimination takes a toll. I read here that half of LGBTQ+ employees stay closeted at work, and nearly 43% of gay individuals and 90% of transgender individuals have faced harassment or mistreatment on the job. In fact, job applicants affiliated with LGBTQ+ organizations were 40% less likely to be called back for an interview, and LGBTQ+ people of color continue to face added challenges in discrimination, representation, and economic opportunity.

In fact, LGBTQ+ individuals are three times more likely to experience a mental health condition than non-LGBTQ+ individuals, and according to Mind Share Partners’ 2019 Mental Health at Work report, they were more likely to experience every mental health symptom listed across anxiety, depression, and more, and nearly three-quarters report experiencing mental health challenges because of work itself.

And so LGBTQ workers face a double stigma based on their sexual orientation, gender identity, or gender expression and mental health challenges.

But, but, but ….Diversity! Inclusion!

I know! Diversity and inclusion has become a buzz phrase—a single noun. But, true diversity and inclusion requires more than cosmetic changes to the workplace.

I explained here that “diversity” refers to the components of a workplace while “inclusion” measures how fair and inclusive the interactions and practices are within that workplace.

A diverse workplace has individuals who represent different races, national origins, ethnicities, genders, abilities, sexual preferences, ages, interests, backgrounds, levels of educational achievement, socioeconomic statuses — and the list goes on.

Diversity embraces cultural differences in the workplace by valuing and managing the whole idea of diversity and inclusion. A workplace that values diversity achieves it through awareness, education, and the recognition. Inclusion is about the employee’s experience and how an employee feels (s)he is treated.


Employer Takeaways

A diverse and inclusive workplace includes refers to all employees, include LGBTQ and those physical and mental health challenges. How can companies increase inclusivity and reap the benefits of diversity and inclusion while tackling LGBTQ dissatisfaction and attrition:

  1. Ensure that senior leaders show commitment from the top of the organization to the bottom promote. Remember, people follow the leader!
  2. Make a compelling case for the benefits of diversity. You can do this in your policies by telling your employees why diversity is so important and how it benefits the entire company. And, as we’ve said time and time again, senior leaders play a key role. Have open, candid conversations about it, and be transparent about where you think you are and how far you have to go;
  3. Ensure the fairness of hiring, promotions, and reviews. Have a strong policy promoting diversity and inclusion, and implement it, filtering out inherent bias where you find it. One example suggested by one study is to conduct blind résumé reviews to reduce any chance of gender bias;
  4. Implement inclusive, anti-discrimination corporate policies that specifically include sexual orientation and gender identity as protected characteristics in all areas of employment (hiring, promotions, firing, transfers, etc.);
  5. Provide equal benefits to same-sex couples, especially health insurance;
  6. Have contractor or vendor nondiscrimination policies that include sexual orientation and gender identity;
  7. Develop an employee resource group that your company expressly supports;
  8. Ensure all employees, including supervisors (especially middle management) understand inclusivity and anti-discrimination and anti-harassment policies;
  9. Provide regular, interactive training to your employees, yes, but to your supervisors and HR staff too so that they can recognize, respond to, and prevent unlawful discrimination and harassment based on sex stereotypes.

These are some suggestions. The bottom line: we are all struggling with something. And remember, this is also a matter of risk mitigation: the EEOC’s Strategic Enforcement Plan for 2017-2021 includes a mandate for”[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex.”


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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.