hrexaminer-when-an-employee-says-I'm gay.

“Humans are sexual beings, and all sorts of issues arise at work because of it.” – Heather Bussing

Coming out as gay or transgender is getting a lot of attention with the Supreme Court arguments on gay marriage and the recent announcement by pro basketball’s Jason Collins.

What do you do when one of your employees comes to you and announces “I’m gay,” or “I’m transgender”?

Hopefully, nothing. Wish them well.

But it may not be that easy.

The announcement could cause drama, discomfort for those who don’t understand, or don’t like the idea. Sometimes there is violence. Recently an Applebees worker was beaten by a co-worker’s husband because he was gay.

So until everyone sees the light, make that rainbow light, here’s what you should know.

Words to Understand

Sexual orientation-refers to the gender a person is sexually attracted to. It includes gay, lesbian, and bisexual.

Gender identity or Transgender refers to someone whose inner identity is different than their physical gender at birth. They may have changed gender through surgery or not. They may dress or appear as a different gender or not. But gender identity is separate from sexual orientation.

Words to Use

When someone is transgendered, do you say “he” or “she”?  Ask the person what to say, then do that. It’s much less awkward to say you don’t know, but would like to, than guess wrong.

Words Not to Use

Someone’s sexual orientation, sex life, and gender identity are not relevant to work.  There’s really no reason to talk about it unless there is some problem with discrimination or violence.

Bathrooms to Use

One of the most awkward issues for everyone is what bathrooms should transgendered employees use. Again, ask the person what he or she prefers and agree on one, depending on preferences, the available facilities, and comfort levels for all involved. Then deal with any issues privately, on a case-by-case basis, and with sensitivity toward everyone.

Employment Laws that Apply

Discrimination Laws

Federal law — Title VII does not currently list either sexual orientation or gender identity as protected classes. However, both the EEOC and courts are recognizing that treating someone differently because they are attracted to the same sex, instead of the opposite sex, is a form of gender stereotyping. Gender stereotyping is a prohibited form of sex or gender discrimination.

State laws — Sexual orientation is a protected class under 32 states’ discrimination laws. Gender identity is a protected class in 24 states. Some cities, like New York, San Francisco and Minneapolis, have their own local laws that apply to discrimination too.

You can look up your state law here.

Workplace Violence Laws

Employers have a legal duty to provide a safe workplace for all employees. This is based on both Federal and State OSHA laws as well as specific states’ laws that require employers to protect against workplace violence.

And violence is always a crime.

So if there is any indication of harassment or violence based on someone’s sexual orientation or gender identity, it is essential to act quickly and take all reasonable steps to protect the potential victim.  Unfortunately, firing someone for harassment or violence often creates vulnerability for more violence. So call in the attorneys, and if necessary the police, to help you navigate the terrain.

Humans are sexual beings, and all sorts of issues arise at work because of it. Handle it with compassion. And make sure to watch for signs of harassment or violence.

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