Companies shouldn’t hire or fire based on gender identity or sexual orientation, right? Seems pretty obvious. But until recently, 25 states had no such anti-discrimination protections in place and elsewhere there was a patchwork of state laws on the matter. In mid-June, the U.S. Supreme Court finally weighed in, issuing a groundbreaking ruling that makes it illegal to fire gay or transgender employees based on their gender identity or sexual orientation.

Already, some are predicting a “wave of litigation testing workplace protections for transgender people” (Washington Post, June 24, 2020) Indeed, like any Supreme Court decision impacting the workplace, the ruling is likely to have far-reaching implications for employers, ranging from those scurrying to protect themselves against possible litigation to those seeking to leverage the opportunity to increase diversity in their workplace.  

The Last Domain of Discrimination

In recent years, companies have worked to increase diversity in terms of gender, ethnicity and religion. At the same time, the LGBTQ community has remained, for many, the “last acceptable and remaining prejudice” area in the workplace (Ozeren, Sexual Orientation Discrimination in the Workplace: A Systematic Review of Literature, 2013).

The numbers tell the story: According to a survey of 6450 transgender and gender non-conforming participants, conducted by the National Center for Transgender Equality, this group experiences double the rate of unemployment as the general population. Forty-seven percent (47%) experienced a negative job outcome, from being fired to not getting hired or being denied a promotion because of being transgender or gender non-conforming. Over one-quarter (26%) reported that they had lost a job due to being transgender or gender non-conforming. What’s more, nearly half of LGBTQ employees (46%) report being “closeted” about their identities at work, according to a recent report by Catalyst (June 2020).

Getting LGBTQ Hiring Right

While some workplaces are unwelcoming or outright hostile to LGBTQ candidates, others are eager to increase diversity in their ranks. But how can you ensure that your hiring process is truly open to the best talent and blind to irrelevant and biasing factors, from religion and sexual orientation to ethnicity, place of birth and other personal factors?

1. Hire based on skills, not biography: Keeping your process focused on actual capabilities - soft and hard skills- is the best antidote to hiring discrimination. A process that is able to zero in on what a candidate can actually DO is likely to find those who are the best fit for the job, regardless of personal background. At the end, you want to know if a candidate has relevant experience (have they managed people before?), the right hard skills (do they know Java?), and the soft skills needed to succeed in the position (do they have a growth mindset? A positive attitude?).

2. Hire with structure: At many companies, a candidate is interviewed by multiple people, opening the door to subjectivity and potential biases. While this very human process cannot be completely controlled, the use of a structured interview process, whereby everyone asks the same questions, has been proven to significantly reduce bias. This makes intuitive sense: since all candidates are asked the same questions, there is less of a chance for members of minority groups to be asked more difficult or personal questions than other candidates.

3. Measure and track bias: Research suggests that unconscious bias remains a factor in the workplace, despite decades of discussion. What’s more, there is little evidence that inclusion and diversity training, in place at many companies, actually move the needle. Tracking the bias in your hiring process - and correcting it - is an effective way of combating the issue. To this end, compare the ratio of candidates from various minorities that submitted their CVs with those that were hired - the numbers will tell you the true story at your company. And strive to have the same minority representation at your company as that in the general population.

4. Use ethical AI: If designed correctly, algorithms will focus on the data and results of the hiring process, leaving aside personal biases and preferences. Algorithms can be trained to identify the factors that you determine are most important in a candidate - looking at both hard and soft skills - while ignoring those that are irrelevant but might cloud our judgment. In addition, algorithms can identify which skill sets – again, both hard and soft - predict success at your company, so that you can try and find more people with those skills, resulting in reduced turnover and increased retention.

Of course, this only works if the algorithms are designed correctly, looking solely at the relevant skills and actively isolating out irrelevant personal factors. For example, if a company has an all white and male sales team, top performers will, of course, all be white males. But once the algorithm identifies the skills and capabilities that characterize top performers at the company, it can then search for those same skills and capabilities in the candidate pool, isolating out gender and other personal factors, and leading to a company with more top performers, but also increased diversity.

The Supreme Court ruling will hopefully serve as a much-needed catalyst for combating workplace discrimination against the LGBTQ community. It also presents an opportunity for companies who seek to increase the diversity of their workforce. By using technology, which can be trained to focus on skills and capabilities while turning a blind eye to personal factors, companies can increase diversity on their teams while also improving the quality of their hires, reducing turnover and increasing retention. It is the rare win-win.