Last week, Justice Clarence Thomas’s concurring opinion for Dobbs v. Jackson Women’s Health Organization confirmed the fears of LGBTQ+ advocates, allies, and community members. In it, he urged the court to reconsider other landmark civil rights cases of the past half century, including Lawrence v. Texas, which ruled anti-sodomy laws unconstitutional, and Obergefell v. Hodgess, which enshrined marriage equality as the law of the land.
“With Justice Thomas’ language, I guarantee you there are people out there who are starting to work on lawsuits to attack our right to marry,” said Jim Obergefell, lead plaintiff in Obergefell, to CNN over the weekend.
Whether these challenges will be successful remains to be seen. “I’d like to be optimistic that protection for marriage equality will continue to be protected, because our society is far more accepting now of marriage equality,” says Allegra Fishel, founder and executive director of the New York City based Gender Equality Law Center.
Still, Fishel argues workplaces still must act now to protect the rights of queer employees as conservative legislatures levy attacks on the LGBTQ+ community, such as so-called ‘Don’t Say Gay’ bills and restrictions on trans youth access to gender affirming care, and discrimination against LGBTQ+ employees persists even in states with more robust protections. As Pride Month comes to a close, we talked to Fishel about the concrete steps leaders should take to build more inclusive workplaces for LGBTQ+ employees—beyond the rainbow logos and pride-parade sponsorships that have been criticized as performative ‘rainbow washing’. Here are her answers, edited for space and clarity:
What’s the current state of workplace protections for LGBTQ+ employees?
Most of the protections come from state and local laws because the federal law to protect LGBTQ workers has repeatedly failed and has not been passed by our federal legislature. Twenty-seven states have no laws.
The caveat is that, since the Bostock [v. Clayton County] decision in 2020, there are now federal protections. Tthe Supreme Court’s decision in Bostock, under Title VII of the 1964 Civil Rights Act (which is the federal law that protects different categories of employees from discrimination in the workplace) individuals who consider themselves to be lesbian, gay, transgender, but maybe not gender non-binary, are covered under federal law. But here’s the problem: It only covers workplaces with 15 or more employees. If you work in a workplace smaller than 15 employee, you can be legally discriminated against because of your sexual orientation, gender identity, or gender expression in over 50% of states.
I do want to point out that Justice [Neil] Gorsuch, who signed on to the Roe decision, did write the Bostock vs Clayton County, Georgia, so I’m hopeful that LGBTQ rights and marriage equality will not be under attack now or in the future at the Supreme Court.
What are concrete actions employers can take to protect and celebrate LGBTQ+ employees?
First, there have to be strong written policies that are given to employees, maybe with examples. Training has to be an inclusive and comfortable and safe space for workers to talk about different scenarios.
Managers have to be keenly alert to what they’re hearing in the workplace. They can’t downplay jokes. They can’t ignore what they’re hearing, and they have to be attuned to how damaging microaggressions can be for LGBTQ folks. Management has to encourage complaints. I’ve been doing workplace rights for employees for decades, and lots of good employers say they protect rights all across the board. But when people come forward, they minimize them and they make workers feel humiliated and embarrassed for coming forward and often punish them.
Modeling is also really important—having leadership that’s openly gay or transgender is enormous. I’ve been practicing law enough to remember a time when I would often be one of the few women in the courtroom and the judge would always be a man. Now, I would say half of most judges are women, my adversary is often a woman, and a mediator or an arbitrator is often a woman. And it really does make a difference. You can see yourself in the people that have leadership roles and the people of power. If you really care about that, you can find talented people who represent different kinds of diversity. It signals to your employee that you believe those folks should have power.
Benefits like parental leave and medical insurance are often areas where LGBTQ+ employees are excluded or discriminated against. What are some ways in which people leaders can make sure their benefits package is inclusive?
New York state has a pretty progressive paid family leave law. Gender is a non-issue. You can take parental leave to care for and bond with a child. That child does not need to be your biological progeny. It could be through adoption, through foster care, or if you hold yourself out in any capacity as their parent—you live with them, you care for them, you support them. That’s a very progressive model [for other states or individual workplaces].
In terms of healthcare benefits, policies that are not covered universally are things like in vitro fertilization or assisted reproduction for same-sex couples. For instance, in many policies, you had to have tried for six months or 12 months before having access to the benefit. So a heterosexual couple would have a sexual relationship and would not be able to conceive. They would get assistance. It’s very difficult for a lesbian couple to say they’ve been trying.
There’s also been some movement to cover hormone therapies and transition surgeries. Transition can be an extremely expensive process if you start to factor in surgery. It would be incredible if large companies can afford to cover it.
The thing you always have to be mindful of is if companies join a larger insurance network, they may not have full control over their own policies. They may not even be aware of whether these benefits are included. And some companies may not be interested in finding out because they don’t really think of these as important issues, but they really are if we want to create more level playing fields for employees.