Diane Burton: 0:14

Work is all around us. It defines us and the future of work impacts nearly every person on our planet. The ILR school at Cornell University is at the center of work, labor and employment, influencing policy and practice on the most pressing issues facing employees and employers. ILR school Dean Alex Colvin is the host of our series"Work! Exploring the future of work, labor and employment," featuring discussion with experts on key world of work topics. In this episode, Dean Colvin is joined by Katrina Nobles, director of conflict programs for ILR's Scheinman Institute on Conflict Resolution. They'll be talking about situations in the workplace that involve LGBTQ employees.

Dean Colvin: 1:02

Cases of the Supreme Court can seem pretty theoretical and abstract at times. This question of whether gender identity or sexual orientation is a right under title seven or not. What does this actually mean though in practice for workers and for companies? What's the impact on them of these decisions?

Katrina Nobles: 1:22

So I think there's a couple of really concrete kind of takeaways, for both individual employees and also companies or organizations. So for individual employees, I would say, dependent on the outcome of the case, you need to consider who do I work for and why do I work for them? Right? You may need to be a little bit more engaged in learning a company's policies prior to taking on employment with them and understand fully what they're offering in terms of either formal protections or expectations within the company. I think for a company, dependent on the outcome of the case, a company really needs to think about kind of what are their policies, procedures and expectations, and they need to be ultra clear with that. And what are the pathways that you can take within the organization when a conflict comes up around these issues? I think this is important, especially if the language within the federal law or the expectation within the federal law becomes more vague instead of more clear. You're looking at something that an organization is going to have to define and by defining that, they are going to define their culture. So policies, procedures, and expectations a re kind of, kind of define what your organization looks like.

Dean Colvin: 2:55

So the Supreme Court might say that there's a right against discrimination based on your sexual orientation. But that also might make me think as an employee,"do I want to work for a company that doesn't value that right?" Something that I value as well. Or conversely, as a company, I want to make sure that the policies we have reflect the values that we as a company have.

Katrina Nobles: 3:19

Exactly.

Dean Colvin: 3:20

So if somebody never fills a the coffee maker after they've emptied it, well it's a day to day irritant right. There's, you know, I have an interest that I'd like you to be a better colleague and fill the coffee maker. But when it comes to an organization treating me differently because of my sexual orientation that gets to a rights issue and I feel differently about that because of the nature of the nature of the conflict there.

Katrina Nobles: 3:45

Right. Yeah. And that really speaks to, I mean, when we talk about that particular area of rights, where we have things that cover discrimination and different types of discrimination, you're talking about identities and identities are central to who we are, right? And we are the center of our own reality. So when somebody is attacking something that we consider our identity or a part of our identity we're gonna feel it in a very destructive and deep way where we want some larger form of recourse around whatever they've done.

Dean Colvin: 4:23

It seems like this is an area we get into clashes of values and rights too which are really difficult to deal with in organizations. I was just reading about a recent case in North Carolina involving a teacher who claimed because of religious values that he held that he didn't want to use the pronoun of choice of one of his students. Um, that then led to the teacher being disciplined by the organization. So, you know, it's the kind of workplace conflict where you have a clash between different rights and different values, which seemed particularly tough to deal with.

Katrina Nobles: 5:01

Yes, I, you know, I think that is particularly difficult to deal with. And that's something that I believe went through their, their typical grievance procedures. So there's a system in place for that, right? And I think systems are, are equally as important as laws and policies and procedures, right? So we think about systems offering one way, a grievance procedure as part of a system offering one way to kind of address value issues or address policy or a rights based issues. I think the interesting thing with anything that comes up in laws in even collective bargaining contracts, things like that is that there's a certain amount of interpretation, right? And that's what we're dealing with currently with some of the things in the news around LGBTQ situations occurring in the workplace. And it's interpretation. So first of all, is it something actually having to do with your identity as an LGBT person as you know, one avenue? I think the other kind of interesting area with that is, does it rise to a certain level? Right? That's the other part we kind of think about with rights and laws. We see it in the Me Too movement, in terms of the level of what we consider sexual harassment. And as a country we're struggling with that one too. Right? So, I think it's kind of interesting because we think of rights and morality often as kind of a black and white, right and wrong type situation when in fact there's quite a bit of interpretation involved.

Dean Colvin: 6:53

That leads into, I think a question that people often struggle with. What's the role of company policies and company authority versus individual rights and how, how do you balance those two and their impact on, on a worker, right? The company says one thing, this is our policy, right? And then the workers are like, okay, how does that mesh with my individual rights?

Katrina Nobles: 7:16

Right? So typically when we see policies that differ from, from federal law, at least in my experience, it's been policies that go above and beyond a federal law. Right? So you might have the base discrimination laws that are out there where you can make a claim with the EEOC or, or things similar to that. And then you've got a company who maybe is a very liberal company or a very green company or something like that, and they take a policy that puts a further restriction or a greater expectation on the base level federal law. Right? And so I think policies play a very big role in shaping the culture of an organization because it basically sets expectations.

Dean Colvin: 8:07

So I think it must be a surprise sometimes to employees to encounter that, that the company has something that is an expectation that's higher than what the basic rights that they have are.

Katrina Nobles: 8:19

Right.

Dean Colvin: 8:20

Uh, one of the examples that I think is interesting to think about with this is sexual harassment. You know, we have our laws protecting against sexual harassment, but companies often seem to have more extensive rules such as, you know, you can't date a coworker, right? No. dating at work policies that employees may, may think impinges on their personal rights.

Katrina Nobles: 8:48

Yes. And I think, I think a lot of that in terms of how those policies and or procedures play out are dependent in some way on how they've been written out, how they've been set forth in terms of employee handbooks. What setting are you in? Are you in a unionized setting or are you in a non-unionized setting? Then you have, if you're in a unionized setting, you have the backing of the collective bargaining agreement as well as the union as a whole. And I think that it, it does become somewhat interesting and some of those things that tend to be unclear if the expectation, whatever that above and beyond expectation is in a policy was not made clear or was not made available. Those are the times where you might see individual rights winning out over company policies and expectations. I think there's a pretty large population that tend to be in non-unionized workforces, right? So they're employees at will and the company if they've laid out a clear policy that provides appropriate and clear expectations, regardless of whether that kind of steps over the boundaries of personal rights. To some extent there are, are some, boundaries on that. But to a certain extent the company's rights could win over an individual's rights.

Dean Colvin: 10:18

So you're circling back to these Supreme Court cases, right? So let's suppose the Supreme Court decides that sexual orientation is not protected under Title VII, so employees don't have the individual, right. I guess it would still be the case that a company, if the company had a policy that you're not allowed to discriminate based on sexual orientation, then as an employee, you're bound by that policy, right?

Katrina Nobles: 10:40

Yes. Yes. So I think the key here though is that you know, you might see these cases going in a slightly different direction. So the, the time where it's a federal law that's upholding a right, you'd take it potentially in the, in the path of litigation, right? I'm going to take it to the courts. Whereas if it's, if it's more of a policy of a company, the hope would be you'd have some internal process that's occurring that would kind of help determine some of these steps before litigation. Right. Because there's not a law per se that's going to distinctly say you can't discriminate on the basis of sexual orientation, if the case were to go that way.

Dean Colvin: 11:28

Yeah. I think that's one of those really important points for people to realize is that even though we're a really litigious society in America, we're kind of known for the place where everybody runs to court all the time. The reality is for most of us, most of the time, we don't want to go to court. If something happens in the workplace that you know, isn't good, even if you feel your rights might've been violated, you'd much rather have an ability to complain to the company and somebody do something about it rather than having to sue your employer.

Katrina Nobles: 11:58

Right. Right. I mean, obviously that changes a bit if we're talking about termination or something to that extent where then you're no longer employed by the company. But I mean if we're talking about discipline within the company as a for instance, yes, I mean, I, I think employees tend to, um, struggle with those situations that come up if there's not a clear path for them to take to have a discussion, right? So if I want to have a difficult discussion and say,"Hey, Alex, you know, I was really offended by the fact that you were implying that I needed to dress differently because I wasn't feminine enough" or something like that. Or I was feeling like that. Or maybe you explicitly said it, you know, how do I have that difficult conversation? Are we expecting the employee who has been hurt by the event? Right? And maybe you didn't even realize, that wasn't even in your conscience. Right? So are we expecting that employee who's been hurt to figure out how to have the difficult conversation on their own? Or do we have a path in place for that?

Dean Colvin: 13:04

So how do we, how do we set up that path? Right? If we are as an organization saying that we want to allow people to have those difficult conversations and, and we know that they might involve rights and values, things that are deeply seated in people's identity, these, there's going to be difficult conversations to have. You know, how do we make that path one that's effective for employees to be able to have?

Katrina Nobles: 13:28

I think first and foremost, it's having really clear policies and expectations, right? If we're expecting that to be part of our culture, part of the organization's expectations, we need to make that clear, right? So first and foremost, we as an organization need to be clear on where we stand on some of these things. Second, I would say there needs to be multiple access points. Every person's experience is different and every person's comfort level with direct or indirect dialogue is going to be different as well. So we need to have the access point for the person who is more than happy, I'm going to go talk to Alex directly right now because of what he said, versus the person who needs the access point where it's their manager. Has the manager been appropriately trained to manage that conversation, to have that conversation, first of all, just with that employee, right? To validate what they're feeling, validate what they're thinking, but then furthermore, to come up with a plan for how do we have that conversation with Alex? Does it need to be somebody other than you? Do we need to go to HR? Do we need to go to employee relations? Right? But it's having those multiple access points and then we have to be clear on what are considered egregious acts or what are not. Right. So what would go through kind of a performance process, or a discipline process versus one-on-one difficult conversations.

Dean Colvin: 14:59

And I could imagine it might vary for employees depending on the type of issue so that I might be comfortable raising concern about my salary, but not being comfortable about having a discussion about an issue relating to gender identity or sexual orientation. That I might view that as something that's much harder to have the conversation about or only with certain people?

Katrina Nobles: 15:22

Oh, definitely. Definitely. I think the, the topic area makes a big difference. The number of access points makes a big difference. And the, the training that everybody in our organization has makes a big difference, especially managers and supervisors, right? Because we want them to know what the appropriate paths are. We want them to know what the right conversations are and who should be having them. And when is it appropriate to take it to a higher level? When is it appropriate to actually say, actually we need to escalate that to the next step.

Dean Colvin: 15:56

It seems particularly difficult in some of these situations where you have clashes between employees who both claim rights based interests. Um, you know, we, we've all heard about the famous case of the, uh, the bakers who don't want to bake a wedding cake for an LGBTQ couple because they claim it's against their religious values. Now that case, they owned the business. And so it was based on that. But I could imagine, you know, that a company I'm running where I have two employees, each of whom claims their own rights. In the situation, the rights to be free against discrimination based on your sexual orientation or gender identity. And on the other side, the employee who claims that their religious rights are being violated. How do we think about those conflicts? Cause that seems like a really difficult one to deal with in the workplace.

Katrina Nobles: 16:48

Yeah. So I think you said kind of the magic word there in terms of the most classic cases we see with the bakers, it was the ownership piece, right? I think when you're talking about employees, we have to be willing to kind of step into the difficult conversation arena. If we're managing two employees that are kind of in that scenario because there will be some kind of, hopefully in our, our best case scenarios, right, there will be organizational policies. There will be federal laws that are set and followed, right? We don't know how the court cases coming up are going to turn out. Regardless of the outcome. We'll know the outcome eventually. Right? Right. So we would know what is that going to cover? Um, organizational policies hopefully have been made clear, paths have then been made clear and there are certain things that an organization will have to decide, you know, if a conflict gets to X point are we no longer willing to have difficult conversations and then it is a performance and improvement plan and discipline and termination as a for instance.

Dean Colvin: 18:04

So an organization could have certain values of its own that at a certain point is not willing to compromise those values and it feels like it has to take action.

Katrina Nobles: 18:12

Right? Right. So I mean the difference there is that I think the person who is feeling as though they're being discriminated against based on sexual orientation and the person who feels as though they're being, um, their rights are being violated because they have to make accommodations for somebody with a particular sexual orientation. Right? If those are kind of the two sides of the coin, we have to look at the bigger picture as an organization to see where our values as an organization lie.

Dean Colvin: 18:51

Right? And I guess, you know, in the world there are some rights that are not absolute. You know, the, the example I often think about is, Title VII says that you're, uh, you don't have a right based on your religion to discriminate based on somebody's race. So you can't say that, you know, well my, I have a racist religion and therefore I get to discriminate based on race. So we say that there are certain limits you may have rights, but they have to be balanced against other rights that may trump them in our society.

Katrina Nobles: 19:22

Right? Right. So I think that really speaks a lot to how are these court cases going to turn out, right? Because when we get to the level of rights, again, it goes back to discrimination claims that would likely go to at least some form of fact finding and investigation and then potentially through litigation, which puts it at a different kind of conflict model than the internal model to the organization. So if we're talking about something that is not supported by law as a right, per se, it's then the difficult conversations internal to the organization,

Dean Colvin: 20:01

Right. So, so in a way, it's not a surprise that the Supreme Court is now dealing with this question of, you know, is sexual orientation, one of our protected categories under our discrimination law. Does your gender identity have protections under our law? Because we have these issues in the workplace, right? And we, we want the Supreme Court to tell us, is this something that's part of our fundamental rights that we have in this country against discrimination? Right. Well, I think this is a, this is an area that we're going to see play out, um, over the next months and years. Uh, however, the Supreme Court decides these cases, there's enormous issues that organizations will have to wrestle with and how effectively to deal with these conflicts and what the best approaches to having the difficult conversations that they'll need to have in dealing with employee rights and employees interests. Thank you. Katrina for this discussion has been really informative and I think really helpful our listeners to learn more about this topic.

Katrina Nobles: 21:01

No problem. I really enjoyed it. Alex.

Diane Burton: 21:05

Thank you for joining us for"Work! Exploring the future of work, labor and employment." In our next episode, Dean Alex Colvin talks with disabilities expert Suzanne Bruyere, Director of the ILR School's Yang Tan Institute on Employment and Disability. They'll discuss what corporations and small businesses can do to build inclusive work environments for neurodiverse employees. Again, thank you for listening and learn more about ILR by visiting us on the web at ilr.cornell.edu.