Home Home | About Us | Sitemap | Contact  
  • Info For
  • Professionals
  • Students
  • Educators
  • Media
  • Search
    Powered By Google

Concerns for LGBT Workers After the 2016 Presidential Election and
What I-O Professionals Can Do About It

LGBT Issues in Research and Practice 

Daniel A. Gandara, Michelle L. Jackson, and Steve Discont
Illinois Institute of Technology

home

The election is finally over and Donald J. Trump has been declared president-elect of the United States.  During the campaign, over half of all Americans surveyed reported that the 2016 US presidential election has been a significant source of stress in their lives (American Psychological Association, 2016). Election stress was a bipartisan issue equally felt by Democrats and Republicans, yet across racial, ethnic, sociodemographic, age, and ability groups, stress was experienced quite differently.  Since the results of election night, stress may be over for some, but for many others, especially in the LGBT community, the stress is still very much present.  Since the days of the election, calls to suicide hotlines like the Trevor Project have doubled and Trans Lifeline calls increased tenfold (Patterson, 2016; Seipel, 2016).  Many of the concerns that have been expressed are about fears regarding the gains in LGBT rights being lost under the new president (Patterson, 2016).  These include concerns about access to trans-related healthcare, the nullification of marriage equality, and the promotion of reparative therapy, a practice that is heavily discredited by the APA. The purpose of this piece is to inform our field on what these concerns are as they relate to working LGBT employees and the training of I-O psychologists, related policy concerns, and what can be done as practitioners and academics to protect employees and students.

As it stands, Title VII of the Civil Rights Act of the Civil Rights Act of 1964 remains the authority of employee protection from workplace practices.  The language from this statute prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin.  Additionally, the Civil Service Reform Act of 1978 prohibits discrimination by the federal government in personnel actions based on conduct which does not affect the performance of an applicant or employee, which includes being lesbian, gay, bisexual, or transgender.  It is unlikely that these protections would be removed as it requires efforts from both houses of congress and the president to repeal a law.

Executive orders have also provided many additional protections.  Unlike statutory law, any executive order can be removed on the president’s first day in office.  Executive Order 13,087 (1998) amended Executive Order 11,478 (1969) to prohibit discrimination in federal employment on the basis of sexual orientation and gender identity.  Executive Order 13,672 (2014) amended Executive Order 11,246 (1965) and extended this protection to employees of federal contractors and subcontractors. Further, the Obama Administration through the joint effort between the Departments of Justice and Education released guidance to provide educators with information that all students, including transgender students, could attend school free of discrimination.  These protections have the highest risk of being removed. President-elect Trump has stated in his 100-day plan is that he will “cancel every unconstitutional executive action, memorandum, and order issued by President Obama” (Kelly & Sprunt, 2016).  Although the President-Elect Trump has said little to nothing on LGBT issues, Vice President-Elect Pence has openly stated he would make sure that Trump would reverse some of these measures (Hartmann, 2016). 

An additional concern for LGBT employees is marriage equality.  The Supreme Court decision in Obergefell v. Hodges (2015) resulted in the affirmation of the fundamental right to marry being guaranteed to same-sex couples.   This also meant that all workplace benefits afforded to the spouse of an employee were also extended.  These include benefits like healthcare access, insurance, and family leave among others.  On the matter, President-Elect Trump has recently said that the issue is settled, and this is true to some extent but not completely.  The Obergefell decision creates case law, and as the Supreme Court delivered the decision it is harder to overturn.  For a Supreme Court decision to be overturned, a legal question of marriage equality that has not already been decided by the Supreme Court would need to be able to rise through the courts.  Typically, the precedent set forth by the Obergefell decision would answer any legal question on the matter in any court.  However, this does not keep congress from enacting a law that disagrees with the decision, being found unconstitutional by a court, and have that law work its way through the judicial system up to a Supreme Court.  President-Elect Trump has stated that he would appoint Supreme Court Judges committed to overturning the ruling.  Although the risk of losing these protections is smaller and less immediate compared to that of the Executive Orders, it is still real nonetheless.

Another concern for LGBT employees and their community relates to President-Elect Donald Trump’s promise in his campaign platform (Donald J. Trump for President, Inc., 2016) to sign Senate Bill 1598 (2015) or House Bill 2802 (2015) if either were to be passed by both houses of the U.S. Congress. These are bills that have been submitted to both houses of Congress under the name “First Amendment Defense Act” (FADA). If this law becomes official, it will open the LGBT community to significantly greater opportunities of discrimination than before.

FADA is written to legally protect people taking actions against sexual minorities under the guise of First Amendment freedom of religion protections. According to FADA, the federal government is forbidden to take “discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage,” (S. 1598, 2015). Discrimination per this bill encompasses any form of punishment or reprimand on the part of the federal government, as long as the person is allegedly acting in accordance with their beliefs and morals. Finally, the bill reiterates the idea of corporate personhood (Tucker, 2010) by defining persons as including “corporations and other entities regardless of for-profit or non-profit status” (S. 1598, 2015).

To understand the implications that this law can have for LGBT workers, we consulted with Jim Lai, an Illinois attorney and certified privacy and information specialist (personal communication, November 23, 2016). According to Lai, the wording of this bill (S. 1598, 2015) specifically impacts LGBT employees who work for the federal government and for federal contractors. FADA protects “people” who are federal contractors or work within the federal government who take actions against employees based on their “religious beliefs” or “moral convictions” about marriage and sexual behaviors, while protecting them from “discrimination” from the government itself. Although this does not impact organizations that do not receive federal money, Lai (personal communication, November, 23, 2016) cautioned that any organization that has a contract with the government has the potential to be considered a “government contractor,” even if an incidence of discrimination were to happen in an unrelated department or division.

Therefore, a manager working for a company with federal contracts could refuse an employee time-off under the Family and Medical Leave Act to spend time with their same-sex spouse in the hospital, based on the manager’s beliefs, and still be within the bounds of the law. If the company were then to fire said manager, the manager may have grounds to seek damages against his company as their company would be interpreted as acting “on behalf of the federal government” as a contractor. This could even impact allies of the LGBT community, as a person would be able to fire a straight employee if they had beliefs supportive of same-sex marriage, as it would go against the beliefs or convictions of the person doing the firing.

LGBT employees also face increased usage of federal and state “Religious Freedom Laws” as justification for denying services or business transactions towards LGBT individuals. The case of Kim Davis, Rowan County Clerk, was most notable in recent years, when she tried to invoke similar logic to win a case that would allow her to deny marriage licenses to same-sex couples in Kentucky (Kaplan & Higdon, 2015). Since 1993, 21 states have passed Religious Freedom Restoration Acts (RFRA) and 10 other states are contemplating legislation on the topic (Griffin, 2016). Although these laws, and the potential future laws, are distressing for LGBT individuals, one defining point needs to be stressed, these laws have been used as defenses for business transactions with customers not employees.

Despite the impending concerns that may occur with the results of the recent election, there are other protections in place. In 1965, the Equal Employment Opportunity Commission (EEOC) was established by the federal government to “ensure equality of opportunity by vigorously enforcing federal legislation prohibiting discrimination in employment on the basis of religion, race, sex, color, national origin, age, or disability” (Editors, 1999).  Over the years, the EEOC has investigated claims on various areas of employment discrimination and had its services expanded to include educational and technical assistance programs designed to support both employers and employees.  Annually, the EEOC investigates over 80,000 claims of employment discrimination.

Legislation over the last decade, especially regarding the interpretation of Title VII of the Civil Rights Act (1964), has brought increasing attention to the EEOC, especially in the area sex/gender discrimination. Yet, recent EEOC rulings and several presidential executive orders (e.g. President Clinton and President Obama) have expanded the interpretation of Title VII to include “discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII” (Alter, 2015; Macy v. Department of Justice, 2012).  The EEOC ruling in July 2015 expanded upon this, guaranteeing that equal standards apply to sex as well as race, which means you can’t be fired based on who you choose to be friends with, date, or marry (Baldwin v. Department of Transportation, 2015).

Within everyday business, it is important to remember that denying accommodations or benefits to LGBT employees, based on one’s religious beliefs, is still a violation of Title VII. Although religion is a protected class, the EEOC has outlined how far this protection extends under the definition of reasonable accommodation and undue hardship. The EEOC states that “an employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer…if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work” (Religious Discrimination, n.d.). This definition clearly states that infringement on the rights of other employees is illegal.

As organizations adjust to new legislative policies, while continuing to balance their own interests, it is up to us, I-O consultants and HR specialists, to ensure that our organizations are in compliance with federal laws and EEOC practices, while ensuring the rights of each employee to perform their jobs free of discrimination and hostility. To this end, the EEOC has developed numerous training and outreach programs to assist organizations in meeting the needs of their workforce. In 2015 alone, the EEOC field staff gave over 700 presentations, reaching over 43,000 attendees. The local EEOC offices and EEOC websites offer training materials and brochures that can help educate organizations on starting beneficial discussions for preventing discrimination and promoting diversity within companies.

As in-house advisors, we can aid our organizations and coworkers by encouraging environments of acceptance and inclusion. Review current and future policies to ensure that nondiscriminatory language is used and that your policy and benefit programs include coverage for the LGBT employees and their families.  Encourage your organizations to establish diversity awareness programs and reach out to local communities to promote awareness and activism. Informative programming can be developed to assist others in learning about the LGBT community, transgender issues, and how to be respectful of all sexual orientations. This can provide a great opportunity for useful discussions among employees about their own beliefs (religious and other) that may support or conflict with this minority group.  Establishing yourself as a direct advocate for LGBT employees can go a long way towards ensuring that all employees are treated fairly and with respect, allowing them to perform their jobs confidently.

References

Alter, C. (2015, July 17). Discrimination against LGBT workers is illegal, commission rules. Time. Retrieved from http://time.com/3962469/lgbt-discrimination-eeoc/

American Psychological Association. (2016). APA survey reveals 2016 presidential election source of significant stress for more than half of Americans [Press release]. Retrieved from http://www.apa.org/news/press/releases/2016/10/presidential-election-stress.aspx

Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (2015)

Donald J. Trump for President, Inc. (2016, September 22). Issues of importance for Catholics [press release]. Retrieved from https://www.donaldjtrump.com/press-releases/issues-of-importance-to-catholics

Editors of Encyclopedia Britannica. (1999). Equal Employment Opportunity Commission (EEOC). Encyclopedia Britannica. Retrieved from https://www.britannica.com/topic/Equal-Employment-Opportunity-Commission

Exec. Order No. 11,246, 3 C.F.R. 339 (1965)

Exec. Order No. 11,478, 3 C.F.R. 803 (1969)

Exec. Order No. 13,087, 3 C.F.R. 191 (1998)

Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (2014)

First Amendment Defense Act, H.R. 2802, 114th Cong. (2015).

First Amendment Defense Act, S. 1598, 114th Cong. (2015).

Griffin, J. (2016). 2016 State religious freedom restoration act legislation. National Conference of State Legislatures. Retrieved from http://www.ncsl.org/research/civil-and-criminal-justice/2016-state-religious-freedom-restoration-act-legislation.aspx

Hartmann, M. (2016, November 10). President Trump could change these policies on day one. New York Magazine. Retrieved from http://nymag.com/daily/intelligencer/2016/11/president-trump-could-change-these-policies-on-day-one.html

Kaplan, S. and Higdon, J. (2015) The defiant Kim Davis, the KY clerk who refuses to issue gay marriage licenses. The Washington Post. Retrieved from https://www.washingtonpost.com/news/morning-mix/wp/2015/09/02/meet-kim-davis-the-ky-clerk-who-defying-the-supreme-court-refuses-to-issue-gay-marriage-licenses/

Kelly, A., & Sprunt, B. (2016 November 9). Here is what Donald Trump wants to do in his first 100 days. Southern California Public Radio. Retrieved from http://www.scpr.org/news/2016/11/09/66049/here-is-what-donald-trump-wants-to-do-in-his-first/

Macy v. Department of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (2012)

Obergefell v. Hodges, 576 U.S. (2015)

Patterson, B.E. (2016, November 11). LGBT suicide hotlines see a spike in call volume after Trump win. Mother Jones. Retrieved from http://www.motherjones.com/politics/2016/11/suicide-hotline-calls-lgbt-trump

Religious discrimination. (n.d.). Retrieved from U.S. Equal Employment Opportunity Commission website: https://www.eeoc.gov/laws/types/religion.cfm

Seipel, B. (2016, November 11). Suicide hotlines receive record number of calls after Trump win. The Hill. Retrieved from http://thehill.com/blogs/ballot-box/305591-suicide-hotlines-receive-record-number-of-calls-after-trump-win

Tucker, A. (2010). Flawed assumptions: A corporate law analysis of free speech and corporate personhood in Citizens United. Case Western Reserve Law Review, 61(2), 495-548.