February 07, 2016

Businesses are showing commitment to diversity after right-to-marry decision, say panelists

The U.S. Supreme Court in June recognized marriage equality for same-sex couples nationwide in a landmark decision that readjusted the definition of marriage and handed a historic victory to members of the LGBT community. However, a little over six months since the Court’s decision, the use of religion to discriminate and LGBT public accommodations claims have significantly risen.

During a program at American Bar Association Midyear Meeting in San Diego on Feb. 4, a panel of experienced legal experts discussed the rapidly evolving legal landscape of LGBT rights since the Supreme Court's right-to-marry decision, including the local laws and policies affecting LGBT people; recent developments in federal employment law; and employee benefits issues affecting same-sex spouses and transgender persons.

According to the experts, the right for same-sex couples to marry nationwide has encouraged employers to proactively show their commitment to diversity and inclusion.

“Before there was a nationwide right to marry, the gold standard for companies was to say that they offered domestic partner benefits,” said Samuel M Schwartz-Fenwick, partner in the Labor and Employment Practice Group of Seyfarth Shaw LLP. “Now, with marriage, employers are saying: ‘what do we need to do to show that we really have a commitment to these issues?’”

Schwartz-Fenwick said a number of employers are realizing the importance of a diverse workforce and are looking into metrics about the effects of diversity on business performance.

“Employers are realizing that the more inclusive and diverse their workforce is, the better performers they are going to be. When employees feel comfortable in being themselves they bring creativity to work, they bring their ideas, they bring their ability to question… it just leads to a healthier workforce,” said Schwartz-Fenwick

According to Schwartz-Fenwick, hard business rationale is leading companies and employers to try to adopt best practices to support of the LGBT community. Among those initiatives is the LGBT community’s estimated $1 trillion purchasing power.

“There is recognition [from business], especially regarding LGBT diversity, that it’s good for business in welcoming and supporting the gay community,” said Schwartz-Fenwick.

With the increased awareness of the difficulties faced by transgender individuals and the support showed for Katlin Jenner, who prior to converting from a male was known as Bruce Jenner, employers are proactively preparing to support its workforce from an employer-relations standpoint, according to Schwartz-Fenwick.

“[Employers are] also trying to be proactive, even if they haven’t had a transgender employee in the workplace by saying: ‘What would we do if an employee came out as a transgender,” explained Schwartz-Fenwick. “They are working closely with Human Resources to figure out  what steps to walk through  and have a transition plan in place so that, if and when an employee does come out, they’ll be prepared to make sure [they’ll] be able to do it in a comfortable way and receive the support of colleagues.”

Schwartz-Fenwick said employers are now adopting very broad anti-discrimination policies that expressly cover gender identity, how you see yourself, and gender expression, which are the stereotypical attributes we think male and female should be.

When addressing gender identity issues, employers are studying whether they are prepared to deal with religious objectors at the workplace.

“[Those who] don’t want to work with someone who is transgender, or don’t want to work with someone who is gay, or raise objection to a transgender individual using a bathroom that correlates with their gender identity, but not perhaps the sex that they were assigned at birth,” said Schwartz-Fenwick. “It forces employers to think through and state publically the anti-discrimination policy of the company, but also provide a safe space for employees to raise questions and be educated on topics they haven’t thought about.”

In addition, employers are expanding health benefits that include transgender procedures.

“A number of employers are trying to adopt health plans that are inclusive of transgender procedures, so not harboring hormone replacements therapy, but also the surgeries regarding people’s private parts and being broader on how they cover it.”

Historically those procedures have been considered cosmetic and because of that, denied, but employers are starting to recognize such procedures a medical-necessity requirement.

“When a transgender individual’s doctor says this is a procedure which is actually critical for my patient’s mental health, then [their] insurance would cover it.”

Other speakers at the program, titled “Hot Topics in Diversity Law: Same Sex Marriage and Employee Benefits Discrimination,” sponsored by the Section of State and Local Government Law, included Christy Mallory of UCLA’s Williams Institute on Sexual Orientation and Gender Identity Law; California Director Julie Wilensky of the Civil Rights Education and Enforcement Center; and Victor M Marquez, principal of the Marquez Law Group.