In this article, the author has opted to address the most common concern for the LGBTQIA+ community i.e., are we safe from the stigma of society in our workplaces? Or better yet, are we going to be hired by so-called Multi-National Companies? After addressing these concerns in detail, the author suggests certain changes that are viable and can be brought about with little tweaks in the HR policies of organisations.
Before the ‘Section 377’ judgement
The 2014 judgment, National Legal Services Authority v. Union of India and Others[1] might have brought about hope in the hearts of the Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual (“LGBTQIA+”) community but it did not dissuade the masses from their archaic or ancient beliefs. The Supreme Court of India in the said judgment had recognised the existence of ‘third gender’ that did not quite fit into the two closed boxes of male or female. But if analysed, did it bring about a substantial change? No, it didn’t. Except for a third tick box on the forms of various government colleges or jobs, nothing changed. They might have been recognised as a gender but what about their rights to a private life?
Sexual acts between the same sexes and any other form of unnatural sexual activities continued to be a criminal act under Section 377 of the Indian Penal Code, 1860 which prescribed punishment of a maximum ten years for ‘unnatural’ sexual acts. The third gender might have been given recognition by the Supreme Court but the rest of the people who didn’t fit into the heterosexual population were victimized on the hands of the law in this country.
The aftermath of the ‘Section 377’ judgement
On 6th September 2018, the Supreme Court decriminalised a part of Section 377 of the Indian Penal Code, 1860 that criminalises private consensual sexual acts between same-sex adults.[2] This judgment of the Supreme Court in a way restored the dignity and rights of the LGBTQI+ community. But the judgment only addressed the part that was legislated in the Penal Code by way of decriminalisation of sexual acts between same sexes. The voids created remain unaddressed as of now. Marriages, adoption, succession and other areas of private life of the LGBTQI+ community are uncertain as of now.
Apart from that, another topic of concern is the workplace. Holding the consensual sexual acts between same sexes or any other unnatural sexual act between consenting adults legal and not a criminal activity is not the end goal. The end goal is to include the LGBTQI+ community in mainstream society and bring them to an equal status as that of a heterosexual individual.
Are workplaces in India LGBTQI+ friendly?
Members of the LGBTQI+ community are frequently harassed as they go about their everyday lives. This is more so reoccurring in countries like India, where the public space is often an extension of the home, and sociocultural beliefs give way to mistreatment and harassment.
Creation of an environment where LGBTQI+ employees feel safe and proud to work and are respected and treated with dignity should be one of the priorities of the organizations. This requires having in place policies that are intolerant of abuse, discrimination, and exploitation against the LGBTQI+ community. It seems apparent after discussing the issue at hand that, the companies should cover sexual orientation in their policies and their employee handbook. The reality is still far away from the dream though.
Many companies are not LGBTQI+ friendly and because of this reason, the employees of this community often do not publicly accept their identities. To address this, the hush hush policy of employing only heterosexual individuals needs to be done away with and a policy that promotes equality in practice and actuality needs to be implemented. The organisations for this purpose should hold periodic seminars, workshops and sensitization programs, to promote greater participation, support, and understanding among employees.
Certain companies in India already have LGBTQI+ inclusive initiatives in place.[3] Even before Section 377 was repealed, Godrej Industries was one of the first few companies partnering with the UN on an initiative to fight discrimination against gays and lesbians in particular at the workplace. By virtue of this initiative, Godrej made some significant policy changes in the workplace. Words such as ‘spouse’ were replaced with ‘partner’. LGBTQ individuals were also given a three-month paid break for primary care-giving of their babies if they chose to adopt. Health insurance coverage included same-sex partners too.
Another such company is Infosys. It has been one of the few companies to create an employee resource group called ‘Infosys Gays Lesbians and You’ (IGLU) to bring together their LGBTQI+ employees. The focus of the employee resource group is to encourage open discussions on policy changes that are needed and the support that can help LGBTQI+ employees perform better in the workplace.
Intuit was one of the best companies to work for in 2017 and is not far behind in these initiatives. Intuit has its own Pride Network and has been encouraging the creation of safe spaces in all offices. In addition, they offer regular counselling sessions where experts are brought in to offer advice to all employees. There is a consistent focus on building greater awareness around LGBT inclusion.
Few companies apart from the above mentioned have a clear non-discrimination policy in India. Barclays is one such LGBTQI+ friendly company that has made its diversity strategy stronger by sponsoring India’s first LGBT film festival some years ago. Barclays believes in equality of opportunity irrespective of gender identity and sexual orientation.
Can you work with a lesbian, gay, bisexual, transgender or genderqueer individual?
The first query that comes to our mind when we talk about lesbian, gay, bisexual, transgender, or queer individuals working in the same place that we do is, do we want to work with them? It’s a rather complicated answer as even when we understand their plight and want them to feel welcomed, in some way or the other they are segregated from other heterosexual people. For this the HR policies of every company have to be restructured as follows:
- Anti-harassment and non-discrimination: Anti-harassment and non-discrimination policies should prohibit harassment and discrimination based on gender or sexual identity in the workplace. There should be proper committees formed in every company that specifically deals with harassment and discrimination cases of the LGBTQI+ community. And those who have suffered through such traumas should have access to mental healthcare and other support services through the HR teams and the said committee.
- Leave and time-off benefits: These policies should address holidays, vacation, sick, and other types of time off benefits, or any other leave according to company policy. These should be framed to give parental leave to those same-sex couples or other couples of the LGBTQI+ community on the starting of a new family including adoption and surrogacy.
- Health: Health benefits or insurance should cover the partner of the LGBTQI+ community individual and not only the spouse of a heterosexual person. Provisions should also reflect sensitivity towards these individuals, such as medical health coverage for any transition-related procedures.
- Employee conduct: The employees should have strict policies regarding violence against a homosexual, bisexual, transgender or genderqueer person. Further, the dress code and the general code of conduct should be framed keeping in mind the LGBTQI+ individuals.
- Other initiatives by the HR: The HR department should conduct regular sensitization programs to enable individuals to overcome their inherent biases and homophobic ideas. HR should also develop policies that are gender-neutral and focused on zero-tolerance towards discrimination. Induction processes should be initiated that enable trans-employees to get extra time to scale-up and fit into the organizational culture, since many of them might be exposed to a corporate setup for the first time.[4]
[1] (2014) 5 S.C.C. 438 (India).
[2] Navtej Singh Johar v. Union of India, (2018) 1 S.C.C. 791 (India).
[3] Archana Jerath, LGBT inclusion at the workplace, Shrm, (Oct. 16, 2018), https://www.shrm.org/shrm-india/pages/lgbt-inclusion-at-the-workplace.aspx.
[4] ADP, 15 Must-Have HR Policies and Forms, (2019), https://sbshrs.adpinfo.com/blog/15-must-have-hr-policies-and-forms.
This piece has been contributed by Anisha Mishra.