- Some companies have begun to explicitly ask their employees if they want to identify as LGBT in order to specifically tailor benefits to them, but some experts are concerned that companies can't "ensure confidentiality and anonymity," leading to "adverse actions" against those employees, SHRM reports.
- Companies like Facebook, IBM Corp and most recently JPMorgan Chase & Co. ask their employees if they want to "disclose their sexual orientation or gender identity. But other companies like Chevron Corp. thought it was too risky due to data breach concerns. Others still only ask the question in countries where LGBT status is legal.
- However, some HR departments ask the question in order to ensure equal access to retirement programs and fertility planning by same-sex spouses, as well as equal family leave policies and insurance for transgender surgeries.
SHRM's experts provided best practices for how to ask employees if they wish to identify as LGBT. For starters, the questions should only be in place after the company "has some experience in LGBT inclusion initiatives." Ensure that company policy makes it clear that discrimination against sexual orientation and gender identity is against what the company stands for. Finally, explain why and how the data will be used.
A majority of states do not have LGBT anti-discrimination laws in place, which is why some are concerned about the growing use of this line of questioning. However, the EEOC "will accept complaints of sexual orientation and gender identity discrimination as forms of sex discrimination," an expert told SHRM.
The EEOC has been making a push to interpret Title VII's prohibition on sex discrimination to include sexual orientation and gender identity.