Can We Celebrate Pride Month at Work?

As the month of June flies by, workplaces across the nation recognize Pride Month, a significant period of history celebrating the culture, advocacy and progress of the LGBTQIA+ community. This annual observance underscores a broader commitment to Diversity, Equity, and Inclusion, otherwise known as DEI, reflecting a growing understanding of the importance of fostering supportive environments for all employees.

However, navigating these celebrations and initiatives requires a nuanced understanding of evolving employment law to ensure compliance and genuine inclusivity. While the increasing visibility of queer and transgender individuals in the workplace signals a societal shift towards recognizing LGBTQIA+ rights, it also introduces complexities for employers who must balance the celebration with legal obligation.

The current climate is marked by increased scrutiny on DEI programs and necessitates careful consideration of how to implement Pride Month activities in a way that is both meaningful and legally sound. 

LGBTQIA+ is a Protected Class, Both in New York & Nationwide

At its core, the ability to celebrate Pride Month in the workplace is rooted in the legal recognition of LGBTQIA+ individuals as a protected class, shielded from workplace discrimination under both the federal and New York State law. 

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, as well as gender, race, ethnicity, sexual orientation and beyond, as we know now. A pivotal moment in LGBTQIA+ rights occurred with the Supreme Court’s landmark decision of Bostock vs. Clayton County (2020), which clarified that discrimination based on sexual orientation or transgender status is a form of sex discrimination, thereby prohibited by Title VII. This federal protection extends to employers who hold 15 employees or more.

The Bostock step affirmed that that an employer who fires an individual for being homosexual or transgender does so for traits that they would not have questioned in members of a different sex, which Title VII forbids. This legal development demonstrates a clear trajectory towards solidifying LGBTQIA+ rights as a protected class characteristic, making any form of discrimination increasingly defensible.

New York State goes a step further, with even broader protections. The NYHRL, or New York Human Rights Law, is one of the country’s oldest civil rights laws and broadly prohibits discrimination in various areas, including employment status. The Gender Expression Non-Discrimination Act of 2019 amended the NYHRL to explicitly add gender identity or expression as a protected category to the bill. This means that discrimination based on a person’s actual or perceived gender-related identity, appearance, behavior, or expression is prohibited in employment and other areas. New York’s anti-discrimination laws are generally interpreted broadly and offer greater protections under New York law, including the right to use one’s chosen name and pronoun, equal terms and conditions with employment, and non-discriminatory dress codes. New York’s proactive and expansive anti-discrimination laws create a higher standard for employers within the state compared to federal baselines.

Can We Celebrate Pride Month at Work?

You’re probably asking yourself these days, “Is it okay to celebrate Pride Month at work?” The answer is, unequivocally, yes. Employers are permitted to recognize historical moments and offer education of LGBTQIA+ issues concerning the aforementioned protected classes. These celebrations often fall under broader DEI initiatives aimed at fostering inclusive workplaces.  

However, the current landscape of the country surrounding DEI has made things complex. Executive orders such as EO 14173 have led to increased scrutiny, aiming to ensure that DEI programs do not conflict with federal anti-discrimination laws.  This has caused a reduction in support amongst corporate leaders towards Pride Month, with a recent survey indicating that 2 of 5 executives are pulling back, largely due to the fact that these federal policies are significantly affecting transgender individuals and broader DEI initiatives. The absence of clear guidance on what precisely constitutes unlawful DEI activity has created significant uncertainty for employers. This political backlash around DEI is causing employers to scale back on otherwise lawful and beneficial inclusion efforts, driven by fear of undefined “unlawful” DEI activities. This challenge highlights the need for employers to navigate the complexities of DEI with heightened vigilance and strategic planning to avoid missteps, turning it from a purely cultural initiative to a legal compliance exercise.

Ensuring True Inclusivity: Voluntary Participation and Avoiding Exclusionary Behavior

Another crucial semantic often arises, namely on the other side of the issue: “Can we excuse people from Pride Month celebrations?” Yes, participation in celebratory and educational programming should always be voluntary, with the exception of legally mandated training sessions, such as those focused on addressing workplace harassment or workplace discrimination. Employers are not required to compel employees to “value, love, cherish other people,” but rather to ensure their “compliant selves” come to work. This means that while employers must prevent discriminatory actions and harassment, they cannot dictate personal beliefs or feelings. This defines the boundary of employer responsibility in fostering inclusion without infringing on individual beliefs. 

This leads to the question, “Is Pride Month discriminatory?” Pride Month itself is not inherently discriminatory, but employers must ensure their celebrations are structured to avoid exclusionary behavior. Programs should be inclusive rather than divisive, specifically avoiding the separation of individuals based on protected characteristics. For instance, the EEOC has explicitly stated that having LGBTQIA+ employees coalesce as a group in a separate activity from non-LGBTQIA+ employees is unlawful segregation. The emphasis on voluntary participation and avoiding segregation reveals a critical tension between fostering specific identity-based communities, such as LGBTQIA+ Employee Resource Groups (ERGs), and the legal imperative to ensure all workplace activities are broadly inclusive. Employers should also ensure equitable recognition across all DEI efforts, maintaining a balanced approach that safeguards against any single group receiving disproportionate attention to the exclusion of others. Affinity groups, for example, should be open to all allies, not just core members.

Addressing Workplace Harassment and Discrimination Against LGBTQIA+ Individuals

Despite legal protections, workplace harassment and workplace discrimination against LGBTQIA+ individuals remain persistent issues. Both overt discriminatory actions and the creation of a hostile work environment are prohibited under federal and New York employment law. 

Common forms of prohibited conduct include: 

• Discriminatory behavior in hiring, firing, promotions, pay, assignments, or benefits. 

• Workplace harassment based on sexual orientation or transgender status, which can involve sexual jokes, photos, touching, or non-sexual conduct like comments. 

• Using offensive terms, slurs, or jokes about LGBTQIA+ people. 

• Intentional and repeated misgendering or using incorrect names for transgender employees. 

• Exclusionary behavior, such as being excluded from company events or social gatherings. 

The prevalence of such issues is significant. Over 40% of LGBTQIA+ workers have reported experiencing unfair treatment (being fired, not hired, or harassed) due to their sexual orientation or gender identity at some point in their lives, with nearly one-third experiencing it in the past five years. This high prevalence and the widespread “covering” behaviors (e.g., changing appearance, avoiding talking about family or social lives) indicate that despite robust legal protections, many workplaces still fail to provide truly safe and inclusive environments for LGBTQIA+ employees. One-third of LGBTQIA+ employees reported leaving their job due to discriminatory behavior. 

Employers have a clear obligation to take immediate and appropriate action to prevent and correct discrimination or harassment. Furthermore, employees engaging in protected activities, such as complaining about or reporting discrimination or harassment, are legally shielded from retaliation. 

A notable aspect of reported discrimination is its religious motivation. Over half (57.0%) of LGBTQIA+ employees who experienced discrimination or harassment indicated that their employer or co-workers’ unfair treatment was motivated by religious beliefs. This includes instances of being quoted from the Bible, told they would “go to hell,” or were “an abomination.” This highlights a complex challenge for employers in balancing religious freedom with anti-discrimination mandates, requiring clear policies and training that distinguish between personal belief and unlawful conduct in the workplace. Employers must train employees and managers that religious beliefs cannot be used to justify discriminatory actions or workplace harassment, even if those beliefs are sincerely held. 

Below are a list of examples of discrimination in the workplace: 

• Discriminatory Behavior: Firing/not firing, denial or promotion or raises, differential treatment, schedule changes. 

• Workplace Harassment: Verbal harassment (slurs, jokes), physical harassment, sexual harassment. 

• Exclusionary Behavior: Exclusion from company events. 

• Identity-Based Harassment: Intentional misgendering. 

• Motivated Discrimination: Religiously motivated harassment. 

Understanding “Reverse Discrimination” Claims in DEI Contexts

The question “Is Pride Month discriminatory?” sometimes arises in the context of “reverse discrimination” claims. It is important to reiterate that Pride Month is not inherently discriminatory, provided it is implemented correctly, focusing on inclusion rather than exclusion. 

The EEOC’s stance is clear: “there is no such thing as ‘reverse’ discrimination’; there is only discrimination.” Title VII’s protections apply equally to all workers, meaning that different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, regardless of which employees or applicants are harmed. While the legal concept of “reverse discrimination” is rejected by the EEOC, challenges to DEI programs often take the form of “so-called reverse discrimination” cases, alleging favoritism. 

DEI initiatives, policies, or programs may be unlawful if they involve an employment action motivated—in whole or in part—by an employee’s or applicant’s protected class characteristic. Unlawful limiting, segregating, or classifying workers based on protected characteristics (e.g., race, sex) is prohibited when administering DEI trainings or other privileges of employment. This indicates that while the term “reverse discrimination” is a misnomer, the risk of a discrimination claim from a majority group member is genuine if DEI is implemented incorrectly. 

For example, a recent case in the Supreme Court ruled in favor of a heterosexual woman. The U.S. Supreme Court on June 5 made it easier for workers to file “reverse discrimination” lawsuits after siding with Ohio worker Marlean Ames, who claimed she didn’t get a job and was further demoted because she is straight. 

To mitigate this risk, DEI programs should prioritize equal opportunity, reward individual excellence, and focus on merit-based employment. They should not set quotas or make race or gender the deciding factor in hiring decisions. The legal landscape surrounding DEI is increasingly litigious, requiring employers to meticulously “audit DEI programs” and document their “business case initiatives” to demonstrate lawful, objective justifications. This signals a shift where DEI programs are no longer just “good practice” but are subject to intense legal scrutiny, demanding proactive legal review and robust documentation to defend against potential claims.

Key Takeaways for a Compliant and Inclusive Workplace

To foster a truly inclusive and legally compliant workplace, employers should adopt a proactive, multi-faceted approach that extends beyond mere compliance, aiming for a psychologically safe environment where employees feel secure in their identity without fear of retaliation or subtle discrimination. Key actions include: 

• Policy Development: Maintain clear, comprehensive non-discrimination and anti-harassment policies that explicitly cover sexual orientation and gender identity/expression. 

• Training & Education: Invest in ongoing awareness of LGBTQIA and education of LGBTQIA training for all employees. This training should focus on civility, respect, and anti-harassment, directly addressing common pitfalls like the use of offensive terms and exclusionary behavior. 

• Inclusive DEI Initiatives: Ensure all DEI initiatives, including Pride Month celebrations in June, are voluntary, broadly inclusive, and do not create segregation or preference for any group. 

• Support for ERGs: Support Employee Resource Groups (ERGs) that are open to all allies, fostering a sense of community and support.

Fostering a Truly Equitable Environment 

Celebrating Pride Month and fostering a diverse, equitable, and inclusive workplace is not merely a moral imperative; it is a legal necessity under both federal and New York employment law. A steadfast commitment to awareness of LGBTQIA history is paramount to preventing workplace harassment and workplace discrimination, ultimately ensuring that all employees feel valued, respected, and empowered.

Call a New York Sex & Gender Discrimination Lawyer Today

We at Filippatos PLLC stand in proud solidarity with the LGBTQIA+ community. We believe that all people deserve the right to exist freely, no matter who they love or how they express their gender. If you are experiencing discrimination at work due to your sexuality or gender expression, please give us a call at 888-9-JOBLAW for a free consultation. We will do our utmost to help secure you the justice you deserve.