Promoting and protecting LGBTQI+ diversity in the workplace

17 May was the International Day Against Homophobia, Transphobia, and Biphobia established in 2007 by the European Union. The chosen date commemorates 17 May 1990, the day on which the WHO removed homosexuality from its list of mental illnesses, declaring it ‘a natural variation of human behaviour’.   

The topic concerns labour law, due to the legal ban ondiscrimination on grounds of sexual orientation and gender identityboth during the hiring process and throughout the employment relationship. It is also important that organisations promote and protect diversity in the workplace, and protect employees against discriminatory behaviour by colleagues. This good practice for many reasons, and is also an important part of implementing ESG principles in the workplace.

We would therefore like to take this opportunity to talk about the benefits of investment in diversity and inclusion, and to examine a recent ruling by the top Italian court, which decided that an employee who uses homophobic expressions towards a colleague can be dismissed for cause.

The benefits of an inclusive work environment

Proper management of diversity within a business allows for the creation of an inclusive work environment that fosters the expression of everyone’s potential. Research has shown that effective diversity management produces many benefits for companies and employees. These include:

• improved creativity, innovation and productivity: a diverse work group performs better on average than a homogenous one
• attraction of the best people: a company that embraces diversity puts forward a positive image of itself and can, as a consequence, attract candidates interested in working in a dynamic environment that will foster their potential
• improved reputation and image: a company that invests in promoting diversity embraces a major opportunity to get ahead of its competitors in terms of both reputation and productivity, turning its inclusive work environment into a point of difference in the marketplace

In order to achieve all this, steps must be taken ensure effective inclusion through the implementation of policies and measures promoting respect for and integration of diversity. Think, for example, of companies that extended insurance cover to the partners of their LGBTQI+ staff, or which introduced marriage leave for same-sex couples, as well as family bereavement leave and shopping vouchers, even before they were required to by law.

The Istat and the Italian Ministry of Labour have published statistics on diversity and LGBTQI+ inclusion, covering the years 2019-2021. Themost frequently adopted measures for the promotion and management of LGBTQI+ diversity were shown to be those regarding transgender employees. These included, for example, allowing the use of toilets and changing rooms matching a person’s gender identity, initiatives to guarantee transgender workers the right to express their gender identity in a visible manner, and specific measures to protect the privacy of workers who had begun to transition before joining the company (e.g. permitting the use of a chosen name even where relevant bureaucratic procedures have not yet been completed).

It is also essential that staff are made aware of stereotypes, and develop skills that will help them have constructive interactions with diversity. This is possible with a well-structured training programme that does not merely consist of one-off or ad hoc events, but is implemented as a long-term initiative involving the entire staffof an organization: not just HR, but also top management and team leaders.

The case: dismissal for homophobic comments

Promoting and protecting diversity in the workplace also means taking a stand against employee behaviour that discriminates against colleagues. The Italian Court of Cassation recently dealt with the case of a bus driver who was dismissed for having made, in the presence of passengers, offensive and discriminatory remarks about the sexual orientation of a colleague waiting to start her shift. Having learned that his colleague had given birth to twins, he asked: ‘Aren’t you a lesbian?’, and ‘How did you get pregnant?’

The trial judges characterised the driver’s behaviour as ‘substantially uncouth’, and so less serious even than the ‘uncouth or improper behaviour towards the public’ that could be punished by suspension without pay under the applicable work regulations.

This reasoning was not shared by the high court, which decided thatthe trial court, in classifying the behaviour as merely uncouth, failed to take proper account of both social values and legal principles. The judges held that while the trial court’s decision referred only to whether the behaviour was contrary to the rules of good manners and formal aspects of civilised living, the conduct in question contravened far more important values, rooted in both social conscience the general principles of the legal system.

The Court held that society has, in fact, evolved in its understandingof the respect all sexual orientations deserve and of the importance of a person’s intimate life and privacy. Actions disrespectful of these things, and especially those that take the form of mockery in the presence of third persons, cannot be considered mere violations of the formal rules of good manners. On the contrary, when assessing this behaviour consideration must be made of the centrality in the Constitution of people’s inviolable rights, the recognition of equal dignity without distinctions based on sex, and the importance of the full development of a person’s personality, with work being a sphere where that personality is expressed. All this is subject to protection in all its forms and applications.

The legal system provides this general system of protection with anti-discrimination rules to prevent and punish forms of gender-related discrimination. Particularly important among these is the Equal Opportunities Code, which states that ‘harassment or undesirable behaviour, motivated by gender-related reasons, with the purpose or effect of violating the dignity of a male or female worker and of creating an intimidating, hostile, degrading, humiliating or offensive climate shall also be considered discrimination’.

The Court of Cassation therefore annulled the lower court’s decisionto enable the re-examination of the case in the light of its findings.

Conclusions

Creating an inclusive work environment, which allows workers to express their diversity and thus contribute to change, is a major challenge for companies. Diversity and inclusion are assets that organisations must draw on to create value and drive creativity andinnovation.

Ius Laboris is at your disposal to support your organisation in developing policies on diversity and inclusion, as well as harassment.We can advise on best practice when it comes to promoting and protecting diversity, and in promoting a positive and inclusive corporate culture based on a fairness and non-discrimination in line with ESG requirements.