Outlaws: Creating a safe environment for LGBTQ employee self-identification

Topics: Allies, Allies & Inclusion, Corporate Legal, Diversity, Inclusion, Law Firms, Legal Executive Events, LGBTQ, outlaws, Perseverance, Talent Development

OutLaws

In 2018, almost half of employers allow their employees to voluntarily disclose their sexual orientation and gender identity on anonymous surveys or confidential human resource records, according to the Corporate Equality Index, compiled by the Human Rights Campaign (HRC).

That percentage has almost doubled over 10 years, when it as at 27% percent in the 2008 survey, which itself was up from 17% in 2006.

A mechanism for allowing your LGBTQ employees to self-identify in their workplace, at first glance seems simple, but it is more complicated than one might think. There are two key parts for effectiveness: i) creating a safe environment that garners the trust of LGBTQ employees to self-identify within the corporate system; and ii) establishing the actual methods that employers can then offer.

LGBTQ self-identification is important from an organizational diversity and inclusion perspective if employers want to track progress on increasing recruitment, advancement of LGBTQ employees, and representation of LGBTQ talent at senior levels. More specifically, providing a way for LGBTQ employees to identify themselves as part of the queer community involves:

  • tracking the recruitment, retention, and promotion of LGBT+ individuals more effectively;
  • identifying top LGBT+ talent and ensuring they receive appropriate developmental opportunities;
  • decreasing turnover of LGBT+ employees and reducing replacement costs; and
  • providing additional and more targeted benefits to LGBT+ employees.

In fact, it is important to members of LGBTQ employee resource groups at companies as well. Indeed, tracking the details of recruitment and advancement for staff with a LGBTQ identity is primary motivation for why organizations provide a way for employees to self-identify.

Creating a safe environment for self-identification

Unlike reporting of other underrepresented groups, collecting data on LGBTQ employees is not mandated by law in the U.S., making it optional for LGBTQ employees to self-identify.


For more on this subject, join us for a remote webinar, Fellow Travelers: Encouraging LGBTQ Self-Identification in the Workplace, on June 10.


This presents a unique challenge for employers because providing a safe environment based on trust is critical to collecting detailed data. Ken Weissenberg, corporate tax partner at EisnerAmper and co-chair of the firm’s Real Estate Services practice, describes the stark differences between a safe culture and an unsafe culture for being out in the workplace because he has experienced both.

According to Weissenberg, an unsafe culture is one where the atmosphere is outright uncomfortable in which to work. It has an individual (versus team) focus and is a “mean-spirited, back-biting,” dog-eat-dog environment where derogatory comments about LGBTQ individuals are tolerated and not addressed.

Weissenberg’s idea of a safe environment, is that of EisnerAmper, where he has been employed for the last 15 years and was recruited as a partner who was out to his colleagues from the beginning of his tenure. “It is a very supportive environment,” and we all “try to work together and build together,” Weissenberg says, adding that the focus is on the collective performance and success of the team. In fact, Weissenberg recognized the supportive environment from his first interview in 2004 when he inquired about domestic partner insurance coverage. Indeed, EisnerAmper had already made strides to ensure it was part of the firm’s benefits package.

Outlaws

Ken Weissenberg of EisnerAmper

In addition, the firm supported and encouraged his activism in the LGBTQ movement for marriage equality prior to it becoming law in 2012, and the firm created a practice group around LGBTQ family and individual’s needs, which Weissenberg played a key role in starting.

More generally, other key aspects of a safe company culture, according to Weissenberg, include:

  • the visible presence and promotion of senior level employees identifying as LGBTQ;
  • nondiscriminatory policies in the employee handbook;
  • the presence of a dedicated LGBTQ employee community; and
  • sponsorship of external organizations that specifically work to fulfill the needs of less fortunate LGBTQ people and provide ongoing advocacy for LGBTQ civil rights.

Best employer methods of ensuring self-identification

In order to create the best opportunity for organizations to collect the most accurate data on their LGBTQ employees, HRC suggests that each company clearly understand and outline to its employees the following:

  • the purpose and use of the data;
  • the mode of self-identification (engagement surveys, applications, HR information systems, etc.);
  • the perceived overall acceptance of LGBTQ employees; and
  • the company’s overall LGBTQ cultural competency.

To maximize participation of LGBTQ employees in data collection, companies should communicate the specific purpose of why the data is being collected and how it will be used, HRC suggests, further recommending that companies restate their “commitment to non-discrimination on the basis of sexual orientation, gender identity or expression immediately prior to asking for self-identification and to clearly state the purpose of the question.”

When determining self-identification will occur within the company, generally there are two options, either using: i) confidential employee records through human resources’ information systems; or ii) anonymous employee engagement surveys.

Whichever way the organization collects its data, employers need to be sensitive in how it’s done because of the challenging factors, which include: i) data privacy and employment laws and regulations; ii) employee nonparticipation; and iii) lack of global standards for sexual orientation and gender identity categories.

Organizations also need to consider the requirements for data privacy in self-identification methods, particularly for organizations with operations across the globe. Indeed, privacy regulations — such as the European Union’s General Data Protection Regulation (GDPR), jurisdiction employee protections (or lack thereof), and the varying laws across jurisdictions that govern same sex relationships — are among the complexities that exist across borders. Employers need to understand the regulatory and legal framework for each one of the jurisdictions in which they operate.

In addition, the lack of global standards for gender identity categories is equally complex when it comes to employers providing options for self-identification reporting. Employees identifying as transgender and gender non-conforming need expanded options to allow them to self-identify beyond the binary of male and female.

To maximize the opportunity and accurate data collection and to understand the diversity within companies’ LGBTQ communities, it is critically important for employers to emphasize confidentiality to address concerns, and more specifically to reassure LGBTQ employees that employers care about their well-being.