In House - The FindLaw Corporate Counsel Blog

Does Your Company Have an Anti-Harassment Policy for LGBT?

In recent legal evolution, few subjects have changed as much as gender rights.

When a man can become a woman, for example, it represents a 180-degree turn-around that can be dizzying. It cuts across fields as broad as constitutional rights, civil rights, privacy rights, health care, and family law.

In the midst of it all, there is the workweek life of the employer trying to keep their company's anti-harassment policy up to date. This article can help with that. is about considering an anti-gender harassment policy.

What Is Sex?

The standard anti-harassment policy looks like this:

"The employer is committed in all areas to providing a work environment that is free from harassment. Harassment based upon an individual's sex, race, ethnicity, national origin, age, religion or any other legally protected characteristics will not be tolerated. All employees, including supervisors and other management personnel, are expected and required to abide by this policy. No person will be adversely affected in employment with the employer as a result of bringing complaints of unlawful harassment."

But when it comes to sex, we're not talking about the difference between men and women. Sex discrimination, as defined by the U.S. Equal Employment Opportunity Commission, also means:

  • Denying a promotion to an employee because she is a transgender woman.
  • Firing an employee because he is planning or has made a gender transition.
  • Denying an employee equal access to a common restroom corresponding to the employee's gender identity.

It is also against the law to "intentionally and persistently" refuse to use the name and gender pronoun that correspond to the gender identity with which the employee identifies.

It's a Virtual World

When incorporating language into an anti-harassment policy, an employer needs to consider its workplace context. Whether it's a car dealership or a retail store, however, there is always a virtual world.

Virtual harassment can occur through any virtual medium, including email, texting, and social networks. Any anti-harassment policy should be spelled out in a handbook, circular, or other form that clearly communicates the standard to employees.

Under federal law, an employer of 15 or more people is liable if it knew or should have known about the harassment, unless the employer took immediate corrective action. In other words, it requires more than a policy against harassment. Employers have to enforce the rules.

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