Dude Looks Like a Lady: Sexual Orientation and Gender Identity Discrimination Under Title VII, and Potential Conflict Management Systems in the Workplace

“Issues involving the rights of lesbian, gay, bisexual, and transgender (LGBT) persons (and in particular LGBT employees) make headlines across the nation almost daily.” (Shivers, 2018, p. 175). “Gay” and “lesbian” are commonly understood to refer to individuals who are attracted to the same gender. “Transgender usually refers to individuals who deliberately reject their original gender assignment.” (Connell, 2010, p. 33). “Genderqueer generally refers to a gender identification other than that of ‘man’ or ‘woman.’” (Connell, 2010, p. 33). “Transpeople [and genderqueer people] disrupt the assumption that sex (designation at birth as either ‘male’ or ‘female’), sex category (social designation as either ‘male’ or ‘female” in everyday interactions), and gender (management of conduct based on one’s assigned sex category) correspond with each other.” (Connell, 2010, p. 32). “[G]ender identity is truly distinct from a person’s body. Transgender people don’t pick their gender identity any more than cisgender people do.” (Gigl, 2017, p. 44).

Yet even those who are secure in their gender identities do not necessarily broadcast the same to the world. “The decision to be ‘out’ as trans is one that must be individually negotiated based on a number of complex and sometimes contradictory financial, psychological, political, and personal considerations.” (Connell, 2010, p. 38). “How one navigates this decision in such a repressive environment is not merely a matter of free choice, just as is the case with the gay and lesbian ‘closet.’” (Connell, 2010, p. 38). Choosing to reveal one’s status as transgender can be freeing but can also have unintended (and unwelcome) consequences. One woman who transitioned while on the job as a computer programmer “felt that her boss was supportive – yet [her boss] also worried that becoming a woman would be a detriment to her programming skills.” (Connell, 2010, p. 47). “Many transgender people [who choose to be out] lose their family, their jobs, their friends – the very support systems needed to help survive life’s challenges are stripped away.” (Gigl, 2017, p. 45). This paper discusses some of the history regarding legal protection against employment discrimination for LGBT individuals, as well as some of the conflict management systems that can help organizations identify and handle conflicts regarding such discrimination.

Today, LGBT issues are fiercely debated by politicians and their constituents in many contexts. While many people in the United States support equal rights for all, “when [some] people hear someone claim that their gender identity does not match their anatomy, they assume there must be something emotionally or mentally wrong with the person making the claim.” (Gigl, 2017, p. 44). Public opinion seems staunchly divided as to the rights of LGBT persons everywhere, including the workplace. “Debates about . . . religious exemption laws as they relate to LGBT discrimination have become increasingly common.” (Burke & Kazyak, 2019, p. 63). “These developments create legal and practical considerations for employers and employees as they navigate a patchwork of changing federal, state, and local laws.” (Shivers, 2018, p. 175). “[W]hile transgender persons [in particular] face discrimination in a variety of settings, employment discrimination is probably one of the most significant forms – the ability to earn a living affects many other areas of life, including access to housing and healthcare.” (Gordon, 2009, p. 1720). “The issue of whether Title VII [of the 1964 Civil Rights Act] prohibits discrimination based on gender identity and sexual orientation has been hotly contested.” (Shivers, 2018, p. 176). Until recently, “judicial lawmaking has historically reflected and reinforced the bodily and the biological as incontrovertible evidence of a person’s sex.” (Gordon, 2009, p. 1737). Without explicit legislative mandates, LGBT rights have been in a state of flux, leaving employers and employees to sort out appropriate workplace policies and behavior. This has left government agencies and individual judges to determine whether discrimination in the workplace based on a person’s LGBT status is actionable.

In “2015, the U.S. Equal Employment Opportunity Commission’s (EEOC) position [was] that Title VII’s prohibition of discrimination based on ‘sex’ includes sexual orientation, gender identity, and transgender status.” (Shivers, 2018, p. 176). Because LGBT rights are often dependent upon who is in positions of power in the United States, “[i]n October 2017, Attorney General Jeff Sessions reversed former Attorney General Eric Holder’s guidance that gender identity discrimination was protected as Title VII sex discrimination. Sessions’s memorandum state[d], ‘Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.’” (Shivers, 2018, p. 184). However, in 2020, the Supreme Court of the United States (SCOTUS) outright decided that “[a]n 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.” (Bostock, 2020, p. 1737). Justice Neil Gorsuch, writing for the majority, noted that “the limits of the drafters’ imagination supply no reason to ignore the laws demands. When the express terms of a statute give us one answer and the extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to is benefit.” (Bostock, 2020, p. 1737). Essentially, SCOTUS said that LGBT persons are protected from discrimination, regardless of whether the drafters of Title VII could envision that the protection based on “sex” would include gay, lesbian, bisexual, and transpeople. “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” (Bostock, 2020, p. 1741).

As a result, the EEOC has specifically stated that Title VII protects against discrimination based on sexual orientation and gender identity with respect to employment actions, such as hiring, firing, discipline, work assignments, fringe benefits, and more. (Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity, 2021). The EEOC has also stated that Title VII protects against severe or pervasive harassment based on sexual orientation or gender identity. (Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity, 2021). While the EEOC’s technical assistance document is not itself a law, SCOTUS’s interpretation of Title VII requires employers to determine what measures should be taken to foster healthy workplaces and to address grievances for their LGBT employees. Failure to do so can seriously impact a business’s bottom line, not just because of expensive adverse jury verdicts or arbitration awards, but even just because of attrition in the workforce. For example, in law firms, “replacement costs equal nearly twice the employee’s salary and this figure does not include the lowered morale of other associates, the increase in training costs for senior level associates, and the prospective costs of recruiting competitive associates with the potential to draw a strong client base.” (Darden, 2009, p. 95). Diversity, including individuals who identify as part of the LGBT community, can only benefit employers. In turn, “[d]iversity programs require management and [organization] leaders to revise organizational practices in a manner that positively affects the experience of all employees and strengthens the [organization].” (Darden, 2009, p. 96). In other words, encouraging LGBT diversity in the workplace requires that organizations develop conflict management systems, including systems for preventing conflict, managing conflict, and resolving conflict. “Proactive businesses today are moving towards a dispute management framework where high importance is given to customized dispute prevention and resolution systems.” (Masucci & Suresh, 2017, p. 660). “Because the number of employment discrimination cases has increased dramatically . . . , the need for practical alternatives to overburdened courts has never been so important. (Berman & McCabe, 2006, p. 198).

This paper focuses on the conflict management systems of nonunion workplaces. After all, “[c]ollective bargaining agreements in the United States are elaborate and detailed documents.” (Katz et al., 2017, p. 292). They are mutually negotiated to address workplace policies and grievance procedures. (Katz et al., 2017). On the other hand, “in nonunion settings, management has the sole discretion to decide whether to establish a formal dispute resolution procedure.” (Katz et al., 2017, p. 315). “The absence of a union does not eliminate the need for conflict resolution systems in the workplace.” (Katz et al., 2017, p. 315). “Nonunion conflict resolution systems can help reduce the risk of litigation for employers by resolving workplace disputes before they turn into lawsuits.” (Katz et al., 2017, p. 316). Alternatively, such systems can allow “employers to identify managers who are engaging in improper or illegal actions towards employees more quickly and take appropriate corrective measures.” (Katz et al., 2017, p. 316). “The most basic type of procedure is the ‘open door’ policy, under which employees are simply invited to bring their complaint or concern to a manager who will attempt to resolve it.” (Katz et al., 2017, p. 316). “A common feature of these types of procedures, however, is that a manager or managers are the final decision makers, not a third-party neutral, as in union grievance procedures.” (Katz et al., 2017, p. 316). Unfortunately, “[a]ccording to public opinion, there is a serious lack of trust in executives to listen to and address issues.” (Raines & Harrison, 2020, p. 3). This lack of trust is potentially emphasized for LGBT employees. Their managers may have no concept of appropriate language or behavior when dealing with LGBT issues. “People often use words without thinking deeply about their meaning – historical, intended, or received – which can have unintended consequences.” (MacNamara et al., 2017, p. 271). “Most of us are oblivious to our own cultural background.” (Cloke & Goldsmith, 2003, p. 135).

Considering that LGBT employment discrimination issues involve some of the most private aspects of a person’s life being turned public, these informal procedures may not be as helpful in identifying and managing conflict in the workplace regarding such discrimination. “It is not only transgender people who may struggle: Their managers and organizations may also struggle with how to be effective in managing and supporting a gender-diverse workforce, as well as with a new and often changing lexicon about transgender experiences.” (Robinson et al., 2017, p. 301). Thus, at a minimum, every workplace should engage in some form of training or coaching for employees at all levels regarding LGBT issues. One of these is using the appropriate pronouns and terms when referring to LGBT individuals. Even the most well-meaning allies may not be able to keep up with the ever-adapting language regarding the LGBT community. For instance, many people talk about being gay or lesbian as “sexual preferences,” which is inaccurate because it suggests that “being attracted to the same sex is a choice and therefore can and should be ‘cured’ or ‘changed.’” (Glossary of Terms: LGBTQ). Language “practices impact an individual’s sense of self and gender identity because the self is as much a product of society as it is the individual.” (MacNamara et al., 2017, p. 271). “[T]he widespread use of gender-neutral language would not only allow for more inclusion of LGBT individuals into mainstream culture but would give everyone a bit more freedom from the restrictions of the traditional gender binary.” (MacNamara et al., 2017, p. 271). This is exceptionally important in the workplace, which impacts the ability of the LGBT community not only to live, but to receive necessary medical treatment through employment-based insurance programs. “Most transgender people must rely on scarce and finite institutionalized resources from state funding (e.g., Medicare and The Veterans’ Administration in the United States) or their employer-provided health insurance, leaving many without a way to support the exorbitant cost of uncovered medical transition due to systemic barriers that often make traditional employment difficult.” (Robinson et al., 2017, p. 301). Thoughtful conflict management systems can help ensure that LGBT employees feel safe, secure, and respected at work, allowing them and their organizations to thrive.

“In recent years, a trend has emerged toward the introduction of integrated conflict management systems. An integrated conflict management system uses a systematic approach to preventing, managing, and resolving conflict that focuses on the causes of conflict.” (Katz et al., 2017, p. 317). “[S]ome employers have instituted alternative processes for resolving workplace conflict, including ombudsman offices, internal or external mediation, ‘speak up’ programs, employee counseling services, and attitude surveys and related communications programs.” (Katz et al., 2017, p. 317). “Recognition of the corporate ombudsman (troubleshooter) is expanding nationally through practice and recent research.” (Ziegenfuss, 1993, p. 341). “Creating an organizational ombudsman program makes good business sense.” (Barkat, 2015, p. 37). “An ombuds differs from management in at least four ways: absence of formal decision-making power; independence; absence of managerial responsibility; and confidentiality.” (Gadlin & Pino, 1997, p. 19-20). The independence and confidentiality that are central to any ombudsman’s office also make the ombudsman an attractive resource for anyone addressing sensitive issues, as the LGBT community must do consistently. “This ability to voice concerns in confidence encourages those employees who fear retaliation to come forward with their issues and leads to an overall increase in the morale of the organization.” (Spanheimer, 2012, p. 667-668).

Moreover, the institution of an ombudsman office “allows the inquirer to remain actively in control of both the process and the decision making about outcomes.” (Barkat, 2015, p. 40). “The ombudsman partners collaboratively with those seeking assistance in a way that supports and empowers them to evaluate options, and to then select a course of action best suited to their situation and needs.” (Barkat, 2015, p. 40). For example, if a person is having an issue where one or more coworkers are not respecting that person’s pronouns, an ombuds provides a valuable resource for that person to discuss potentially emotional issues. The ombuds can help that visitor determine the best course of action for their situation, because ombuds “do not follow fixed procedures but rather can adapt [their] interventions to suit the issues, people, context, interests or goals of those who come to [the ombudsperson].” (Gadlin, 2012, p. 32). An ombudsperson is available to “provide information, to hear concerns or complaints, to direct concerns to appropriate internal resources, to help mediate interpersonal conflicts (directly or through shuttle diplomacy), to assist in untangling tough problems, to propose or brainstorm possible solutions, to coach visitors on how to strategically navigate turbulent conflicts, or to simply communicate information upward in the organization.” (Barkat, 2015, p. 40). It is entirely possible that an ombudsperson can help visitors resolve their own issues through coaching or shuttle diplomacy and prevent any sort of formal grievances or potential lawsuits before they start.

One challenge, though, is that ombudspersons frequently gather data on issues affecting the organization and whether organizational strategies have been effective in dealing with common conflicts or problems. This can provide valuable information to an organization, identifying areas where other types of intervention, such as sensitivity training, may be needed. Ombudspersons typically bring these issues to an organization’s attention by preparing a regular report for the highest levels of management, including data such as how many visitors came to the office, the categories of problems they brought, and the service provided by the ombudsperson. (Raines & Harrison, 2020). Using “Risk Categories” is a helpful way to provide this information, as it attempts to maintain visitor confidentiality, while clearly communicating worthwhile data to the organization. (Biala, 2012). However, “[s]tatistically, 99.5 percent of the population is cisgender, which means their gender identity matches their genitalia.” (Gigl, 2017, p. 44). This means that there might be so few employees at an organization who are also members of the LGBT community that even using Risk Categories can give away the fact that a particular employee has visited the ombudsperson. This could undermine the confidentiality that is a hallmark of the organizational ombuds and discourage LGBT employees from using this resource. Organizations should be willing to alter the format of or even forgo such reports if they compromise the confidentiality that is a key attribute of the organizational ombuds, to encourage the use of the ombuds as a resource for managing and resolving conflict.

Another conflict management system that should be used by employers is mediation, which “has a very long tradition in many countries.” (Katz et al., 2015, p. 166). “Mediation is most successful at addressing conflicts that arise from poor communications and misunderstandings . . . .” (Katz et al., 2015, p. 171). “[T]he mediation process is best suited to helping the parties understand their differences and move beyond their initial positions.” (Katz et al., 2015, p. 172). Of course, employers benefit from mediation because it saves time and legal expenses. It is important to note that mediation can take place prior to any legal actions being instituted, which can benefit the employee as well as the employer. Court records are public and once a lawsuit is filed, any future employer will be able to see that an employee has filed suit against at least one employer in the past and use that as a pretext for discrimination based on LGBT status. It is true that under Title VII, “the [employee’s] sex need not be the sole or primary cause of the employer’s adverse action.” (Bostock, 2020, p. 1744). But a potential employer might be able to argue that the LGBT status of a potential employee was no part of a decision not to hire someone and only their litigious nature was part of the decision. Thus, mediation can benefit both employers and employees.

During mediation, “[m]ediators keep the parties talking, they carry messages between the parties, and they make suggestions.” (Katz et al., 2015, p. 167). “The ultimate objective of a mediator is to help the negotiating parties reach an agreement.” (Katz et al., 2015, p. 173). But “[p]rogress toward a resolution is possible without necessarily completely resolving any of the issues.” (Katz et al., 2015, p. 173). “Mediation is also designed to help the parties ‘come clean without prejudice’ or ‘save face’ by having the mediator explore informally or off the record what would happen if one or both parties were to move away from their hard-line positions.” (Katz et al., 2015, p. 173). Again, one hallmark of this type of conflict resolution is the neutrality of the third-party assisting in the resolution of the dispute. “[T]he mediator’s primary responsibility is to help the parties reach an agreement and to keep his or her values and preferences or the values and preferences of the larger society out of the process.” (Katz et al., 2015, p. 182). “Because this form of intervention is voluntary, no mediator can function well without the trust of the parties.” (Katz et al., 2015, p. 174). Thus, “[p]erhaps the most important requirement is that the mediator must be acceptable to the parties.” (Katz et al., 2015, p. 174). For any effective mediation process, the employer and employee must agree on the choice of mediator. Just like an ombudsperson, mediators can help organizations improve their conflict competence. “Many mediation agencies, for example, provide education and training services aimed at building skills, relationships, and practices that prevent disputes from arising.” (Katz et al., 2015, p. 185). “Listening, skill-building, conveying compassion, and referral to resources often allow individuals to build the internal capacity and confidence to better manage their conflicts both inside and outside of the organization.” (Raines & Harrison, 2020, p. 10).

Organizations may want to engage in much more formal methods of dispute resolution, such as arbitration. “Arbitration is currently being used more frequently to resolve grievances in nonunion employment relations.” (Berman & McCabe, 2006, p. 197). “The main feature of this conflict resolution system is that the arbitrator has the ultimate power to render a final and binding decision.” (Berman & McCabe, 2006, p. 197). Even if the parties engage in non-binding arbitration and one or both reject the arbitrator’s award, “[m]ost parties that reject arbitration decisions eventually settle – often earlier than they would have in the absence of arbitration. Even if parties do not accept the outcome of arbitration, the arbitrator’s decision forces both parties to focus on a neutral third-party’s realistic assessment of the case.” (Edwards, 1986, p. 675). “Business litigants frequently find the opinion of a third party invaluable in deciding how best to settle many quite complicated cases.” (Edwards, 1986, p. 673). LGBT cases can certainly become complicated, given that so many people are unsure about how to navigate or even discuss the discrimination that the LGBT community faces in the workplace.

“However, mandatory arbitration of employment discrimination disputes may undermine social policies against employment discrimination and impede judicial participation in developing and insuring compliance with employment discrimination laws.” (Berman & McCabe, 2006, p. 200). “We must also be concerned lest ADR becomes a tool for diminishing the judicial development or legal rights for the disadvantaged.” (Edwards, 1986, p. 679). “In 1997, the EEOC issued a statement indicating that forcing employees to arbitrate their discrimination claims robs the judicial system of its power to interpret and apply discrimination statutes, which in turns risks limiting the civil rights of employees who are subject to these agreements.” (Berman & MacCabe, 2006, p. 200). As such, alternative dispute resolution overall has some potential drawbacks for LGBT employees. Whether they are engaged in informal dispute resolution such as visiting an ombuds person, slightly formal dispute resolution such as mediation, or the most formal dispute resolution such as arbitration, none of those resolutions will have any legal effect on society. “Public judicial opinions can provide valuable information for the guidance of suitable workplace behavior to enable state and federal agencies to monitor, investigate, and enforce discrimination law. Court opinions are also a resource for employers to ensure they are complying with the law.” (Berman & MacCabe, 2006, p. 202). This can clearly be seen in the context of LGBT rights in the workplace with the change in EEOC policy up to and following the Bostock decision.

Whatever conflict management system organizations put in place, the most important thing is to create a workplace culture of acceptance and respect for all. “At the very least we must carefully evaluate the appropriateness of ADR in the resolution of particular disputes.” (Edwards, 1986, p. 680). “Once a body of law is well developed, arbitration and other ADR mechanisms can be structured in such a way that public rights and duties would not be defined and delimited by private groups.” (Edwards, 1986, p. 680). Under Bostock, and in the absence of any contrary legislation by Congress, sexual orientation and gender identity are protected under Title VII. Thus, the conflict management and resolution systems discussed in this paper can be implemented and used to prevent and resolve employment disputes regarding LGBT issues. However, if future legislation changes the language of Title VII in a way that undermines Bostock, organizations and the LGBT community will have to examine whether and what ADR systems would be appropriate for managing workplace conflict surrounding those issues.


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