Podcast: Visibility Counts: Corporate Guidelines for LGBT+ Self-ID

May 6, 2019
22 minutes

Listen to this podcast with Ropes & Gray partner Peter Erichsen and Out Leadership Founder & Principal Todd Sears for highlights from the groundbreaking report on implementing LGBT+ self-ID.


peter-erichsenPeter Erichsen: Hello, and welcome and thank you to everyone who's able to join us today. I'm Peter Erichsen, a partner at Ropes & Gray, and I'm delighted to welcome you to an overview of a new report on LGBT+ self-identification that Ropes & Gray has developed in a close working partnership with Out Leadership. I'm joined by Todd Sears, the CEO and founder of Out Leadership. Todd and I are genuinely excited to share the results of this study with you, and I think you'll feel the same way when you have heard them. The first of its kind, this report is the result of many months of research into the experiences of leading companies that have implemented LGBT+ self-identification for sexual orientation and gender identity.

It covers best practices for rolling it out, obstacles to implementation and some of the ways to get past them, and the benefits to your business of collecting these data. Before we go any further, a word of thanks is in order. The research is based on a survey that was filled out by 38 of Out Leadership's member companies. The report compiles their input and feedback, so Out Leadership and Ropes & Gray are deeply grateful to those companies and their professionals who pioneered the self-ID process and provided us with insight into their journeys to LGBT+ self-ID. This presentation will give you only a high-level overview of some of the findings. In the next 20 or 30 minutes, we'll explain what LGBT+ self-ID is, talk about the benefits that organizations can derive from making self-ID available to their employees and colleagues, outline the key milestones and the challenges that an organization might face in implementation (with a special focus on legal and regulatory issues and how to address them).

And finally, we'll highlight some of the best practices for implementing LGBT+ self-ID. Now let me turn it over to Todd, who will give you a little more of an introduction and then present the details of the report. I'll say I will be heckling with the occasional question, but I hope we'll also be able to take questions as we go along from those who are listening. Over to Todd.

todd-searsTodd Sears: Thank you, Peter. I will say the driving force in terms of my perception and the reason I wanted us to do this research was that over the past however many years, as I traveled the world and I meet with leaders from our companies, I'm always struck by the massive amount of misinformation that there is around self-identification. Why it matters, where you can get—where you can ask, how you ask, what the inputs need to be, what the outputs need to be, and what the impact of self-ID is on both the leaders who identify (and the companies in which they identify). And so it was really exciting when Ropes & Gray decided that they would support this project, because it was something I really wanted us to do for a while so that we could increase the number of companies that are using self-identification as a platform for their employees. So with that, let's just dive in. And what we'll do, as Peter mentioned, we will go through some of the slides. And I think he has some hopefully very hard and heckling questions to ask me.

I'm not sure—you know, we'll see. He is a lawyer after all, and I'm not. So let's start with the basics. What is LGBT+ self-ID? For some companies starting back in—when I was at Merrill Lynch for example, we were able to add self-identification to our employee HRS system back in 2005. And there were companies that were doing it even before Merrill.

So it has been around for a while. But as it has evolved, as we have here, you know, it is 1) often misunderstood and under-utilized, some people do think, and it can be a complex process. I do believe that it is one of the key steps in the employee engagement process. But it is important that it is viewed as multi-faceted, both in approach, but also output. There are lots of reasons that companies want to do self-identification, and there are lots of (in my opinion) benefits to doing it, as well as the challenges. We've really tried to sort of balance the challenges that do exist, really focusing on the ultimate goal of why it does matter.

Peter Erichsen: I was curious as I read the report, in terms of the challenges, is it possible to generalize? Are the logistical and operational and legal challenges greater, or are the cultural challenges within organizations greater? Or does it vary, as you might expect?

Todd Sears: I think it's both, but I would say on the organizational and the structural challenges, it depends on the country in which they're operating, right? So if a company wants to do self-identification in one of the 36 countries that we've identified that companies are not doing it, depending on the company (whether it's in Europe with GDPR, or across Asia depending on privacy laws, or here in the United States). Depending on what the sort of local law looks like, how you ask the question matters, and being about to operationalize that across a globe. CitiBank for example, 82% of CitiBank's employees can self-identify in their anonymous employee engagement survey globally. That took a huge amount of risk work on the front end that CitiBank was willing to put in. On the cultural side, that count is important so that leaders understand 1) why it matters, including that it's not just going into some HR database some place. But the company actually cares about career pathing for LGBT people, or being able to send the message that LGBT people are part of a diversity strategy, not just an add on. And that cultural sort of education and the reason for self-ID is a really key challenge that companies have to start with. Did I do okay on that?

Peter Erichsen: So far so good.

Todd Sears: Okay, all right, good. So the business benefits, so as we mentioned there are numerous benefits of self-identification. And I'm not going to go through each of these bullets, but I think if you look at them from a business perspective, each of these has a direct ROI to the bottom line. Whether you're looking at your corporate culture, whether you're looking at your stakeholders, how your company's perceived, all the way through to retention, communication. And the thing that I want to highlight about this from a business benefit is that we're not just talking about the impact to LGBT+ employees. Your ally employees and people across the diversity spectrum in your organization see this as a positive step of the organization. They see this as a message that the organization is sending, both to its stakeholders, its LGBT+ employees, and its customers and clients. And I like to say when we chat about the ally marketplace, if we estimate that the LGBT marketplace is $5.4 trillion, I estimate the ally marketplace is eight to ten times that. The 8% of self-described allies will change a brand based off of a company's LGBT policies, procedures, and what they do in the marketplace. This very squarely fits into that bucket.

Peter Erichsen: And how—two-part question: One is do companies and organizations experience those benefits right away? Or is it a more gradual process? And how do they—what are some of the ways that they get the word out that they are LGBT-friendly and in particular, on issue?

Todd Sears: It's gradual. I will say that there are immediate benefits just in the sense of being able to immediately talk about it, and make sure that the stakeholders in the organization (whether it's the CEO, the executive sponsor, all the way through to the ERG chairs) know and can speak about this as a broader platform for what the company's doing. So in terms of the visibility, that is actually relatively immediate. In terms of the benefits longer term, every company that does this has to estimate that the reporting itself will be massively underreported for the first year to three years that they're doing it (simply because you have to build up trust in the organization). You might have to get that culture shift that makes the employees feel that they actually can self identify, and then see the positive impact of self-identification, right? You have to give people a reason to do it. So for example, one of the companies shared that they like to track talent based off of this, and/or give talent the opportunity to apply for a leadership program like Out Leadership's Out Next. And if you self-identify, we know who you are, so we can put you in this talent program. That's a positive impact and a positive outcome of this.

So the communication piece to this entire process is vital. From the very beginning, all the way through to sharing the positive outcomes and the positive impacts of what the organization is actually doing, really, really matter. Now you had another part to the question though. How are people actually doing it in terms of—   

Peter Erichsen: How are they publicizing it?

Todd Sears: How are they publicizing.

Peter Erichsen: How are they making people aware?

Todd Sears: Yeah, well I think that that's an interesting piece. There are companies that are doing it at the recruiting level as well. So when applicants are applying to the organization at a college level, at a graduate level, even through undergraduate business, which is Out Leadership's newest partner, or Reaching Out MBA, which is another great partner of ours. The opportunity for companies to say, at the very beginning, “We want to know if you identify as LGBT+ so that we can make sure your employee network knows about you. We can make sure that you get sponsorship. The LGBT+ employees want to mentor you, sponsor you, etcetera.” So being able to communicate it at all levels of the employee experience I think is really important. So all the way through onboarding, even the promotion process. Making sure that as people have the opportunity, they can self-identify and know that the company does it.

Peter Erichsen: What struck me the first time I read the report was that 38 companies doesn't sound like a lot, and doesn't sound like a broad-ranging survey. So can you talk about that a little bit before you get into the details? Like, how the 38 break down?

Todd Sears: There are so few companies that are doing this, and most of them are in the Fortune 250. So being able to have 38 companies is actually a decent sample size. I will also say, and I think we all agree with this, the goal is to have hundreds of companies that do this, thousands of companies. Ideally, this should be a best practice that any company, regardless of size, regardless of what their revenues are, should want to implement because it does actually make massive business sense for them and can create great impact. So the idea is that yes, their data is a relatively small number. In the universe of companies, it's a decent number. But most importantly, the best practices that we got from those 38 companies are applicable regardless of the size of the company. So the key challenges, and actually we're going to talk about the milestones and the best practices. What we really want to achieve here, and this is by no means, again, a definitive. But this is a compilation of the processes that our companies have been going through. The key and the number one best, most important piece here is that you have to have the buy-in from every level of the organization, as I was saying before.

The C-suite has to obviously buy in, the ERG leaders have to buy in, and everybody in between. And making sure that you're not just getting buy-in at the beginning, but getting buy in throughout the process. You will hit road blocks. Your friendly lawyers will throw up all kinds of interesting questions that you'll have to navigate. And being able to have people in some cases that are willing to understand what the risk that the compliance team may raise, and still make a business decision based off of that is really important. So obviously, you've got to do it by country, and look at the compliance pieces. Is your technology actually able to move it forward? There are companies that actually had self-ID and then were merged into another company that did not have it, or their platforms didn't match. And they were able—they had to sort of re-navigate or even remove self-ID in some cases.

The communications piece really almost should go across everything here. This is—you know, it's in one bucket, but the communication piece is vital at every step of this process. Especially with how you collect and analyze the data. How do you ask the questions? How do you regionally make them specific, right? Because even languages, the different terms don't translate as easily, and making sure that you're looking at it from a much more holistic and global perspective. Not making it seem like some American thing that you're trying to export to other regions or other countries. And I would emphasize that beginning and the end of this milestone, and the journeys here. Getting the buy-in at the beginning obviously matters, but following up and sharing the positive objectives, or the outcomes, is huge. If people self-identify and then it just goes into some database somewhere that no one ever hears of ever again, you will have failed and people will—you will see participation decrease. So it really does matter that you share the positive outcomes. And again, on the ally front, I would share the positive outcomes broadly because it does cause a difference in the corporate culture. So moving on, the key three challenges (and we identify more in the full report) but the key sort of buckets are on data privacy, employee non-participation, and categories and terminology. Data privacy—that very much was the number one challenge that companies came up with or encountered. I will say that, and when you get the report you'll be able to see a little bit more of this information, a lot of those concerns are actually unfounded in the sense of where you can ask, how you ask, etcetera. So I'm excited about being able to get better information into the marketplace, so that more people will be able to actually navigate data privacy.

The Ropes & Gray team specifically did a fantastic two-page spread in the report, specifically focusing and targeting GDPR. And we'll talk about that here in a second, but I do want to call that out as a really nice guide. And I think we will continue to focus on the GDPRs of the world as they continue to pop up. Employee non-participation is a key challenge. That really does matter in terms of how you communicate, and how you share what you're going to do with the data, and what you actually do with the data. So you will see employee non-participation decrease and participation increase the longer you do it, and the more people see that you actually are trying to do something in a positive way for organizations.

The final challenge in categories and terminology is ultimately a major challenge. And as I like to say it, and we were laughing, but I have like, four stories that apparently that's all I talk about, is that you have to have a Ph.D. in gay to be able to talk about LGBT+ these days. And the gays have made it a little challenging, because we keep adding letters and acronyms, and rearranging things, and adding pluses, and I's, and Q's. And everything else. And to your average non-LGBT+ leader, that can be confusing, challenging and make you not necessarily know how to engage. As it relates to the self-identification process, Facebook (we were just confirming) Facebook for example, you have—has—51 gender markers that you can select to describe your gender identify or expression. Which is massive, and from a corporate perspective, not something that's achievable. So in the report we really did try to limit the number of gender identity and expression markers as a starting point. Because ultimately it's going to continue to evolve, and you've got to pick a point in time to be able to say, “This is where we're moving from.”

Peter Erichsen: I'd love to know, what guidance do you provide to companies concerned about employee privacy, especially in states where LGBTQ rights aren't protected? Not just an issue of states obviously, it's an issue of countries. And you have identified countries where self-identification has been implemented, and yet where as far as I believe, LGBT behavior or acts are prohibited (like Singapore for example). How does that work? How can you have the one, how can you implement the one when the other is the case?

Todd Sears: Yeah, absolutely. Well, and I think it's a great opportunity. There are numerous, 73 countries, where it's still illegal to be gay in some way, shape or form, and the U.S. states of course are still massively challenged as well, and potentially getting worse. So the privacy piece is first and foremost a concern, that you have to make sure that your employees feel comfortable knowing that their data's not going to be exposed.

To Peter's question, in terms of if you can look at this chart, I—this is one of my favorite slides, the heat map here. And if you look at both countries where self-ID is already implemented, and countries where self-ID will be implemented (this is from the companies that we asked) I would encourage everyone on the call to think about if you've talked to your companies around self-ID, has—have—you gotten the, “We can't ask that question in any of these countries?” If you have, share this report with them. Because this is literally exactly why we wanted to do this report. Because, to Peter's point, there is massive misperception. So Singapore is a good example, where 377 is the law, but the prime minister in 2007 said they no longer enforce it.

And there are company misperceptions like the fact that you can't ask “Do you have domestic partner benefits in Singapore?” which is false. You can provide domestic partner benefits for your employees in Singapore, and you can ask self-identification questions. All of these are voluntary by the way, and I think that's a key differentiator to underscore. And that ties into GDPR, as well. The voluntary nature of these demographic questions that you ask does free you up quite a bit to ask a lot more than if they were required questions. But we do currently have companies that are asking in all of these countries you see in blue, and are planning to ask in all of the countries that you see under the yellow line.

Okay so the key questions for due diligence. So these are some of the questions that we are actually—we asked—in the survey, and we encourage companies to consider as you're thinking about whether or not you do want to actually implement self-ID. Is it legal for self LGBT+ people per self to self-identify? Is it safe? And I would actually underscore the safe piece. The legalities as you will see from this report are a whole lot less restrictive than I think people assume. I would really underscore the difference in safety. So do people have the ability to self-identify and are they safe to do so? You know, is there a feeling that they can ask the question, and that they do actually want to make sure that the answers are protected and the employees are safe? And we can talk a little bit about GDPR. So Rohan Massey, chair of Ropes & Gray’s data practice, is the gentleman, the partner here at Ropes & Gray, who wrote the GDPR section of this report. And you know, I think some of the key interesting things around the GDPR. piece were in terms of the protection of the data and how that sort of stack ranks. And I know we were chatting about that.

Peter Erichsen: Yeah, it's actually—as Rohan says, it's actually more protected than things like financial data or social security numbers, or age, which is surprising and encouraging. And the fact that California has now adopted sort of its own version of the GDPR suggests that there's a trend. We can hope so, I guess.

Todd Sears: Right. All the more reason to make sure that you're starting it out in the right framework. So you know, if you can make it GDPR. compliant, ideally you can make it compliant with any of these others. Whether it's California or other jurisdictions that are going in the same vein. Requiring employees to be able to respond is obviously not a thing. And importantly, how you ask the question, and with GDPR you have to provide the reasoning and how the data will be used. And so ideally, if you're doing self-ID the right way, and in our opinion anyway, “right,” that sort of framework of why you're collecting the data, how it will be used, why it matters etcetera actually does fit into the GDPR framework. Because you were ideally starting with that, regardless of GDPR. Other thoughts on that? No? We're good?

Peter Erichsen: I have a sort of concluding question. Just reading the report, listening to you talk about it, I know I thought continually of the way in which working in an environment where it—you're able to be out and able to self-identify as LGBT or your gender identity, improves your life as an employee, as a worker, as a colleague. It makes you a better, in my opinion, employee or colleague. I wonder whether, and I'm sure everybody listening has, you know, the same idea and can think of an anecdote that demonstrates that. But I wonder, from your global travels and/or from the research, whether you—does one story sort of stick out in your mind? You don't have to limit yourself to one story if you don't want to.

Peter Erichsen: Well, I would say two things: One, I would agree absolutely with your statement that being out in the work place does positively impact every piece of your employee experience. And there's data and research to show that. The Power of Out 2.0 that we funded and co-sponsored with Sylvia Hewlett, center of talent innovation, specifically actually documents the fact that if you are out in the work place, you are more likely to be promoted, you are happier, you are less likely to leave your organization.

Your colleagues trust you more, and corporate trust and engagement is the key factor to success and in climbing a hierarchical organization. You're able to identify and find sponsors and mentors in your organization and externally, so there are max—there are multiple—benefits to people being out. And the self-identification process creates one more venue for that to happen, and one more creation of a conversation in your organization. I would also say, and this is a little bit more on the advocacy front of what Out Leadership does with businesses trying to drive change from an economic perspective, the self-identification gives a company the ability to make a case in a Singapore, or in an India, which IBM would be a good example of as well. When IBM started their employee research group in India, I want to say seven years ago, fewer than 20 employees identified as LGBT to join the ERG. Five years later, when they did self-identification, almost 1,200 employees self-identified in India as LGBT. And that was still during the time that 377 was on the books. And that allowed for several things. Most importantly, IBM knew that those 1,200 employees were potentially at risk for discrimination based off of the local laws. It also allowed IBM and other companies, as part of the advocacy campaign to the Supreme Court and to the government and parliament of India, to be able to say that this actually is a business issue for us. These are 1,200 of our key employees who are discriminated against based off of this antiquated law that no one thinks should actually be on the books. And the same thing would be towards Singapore or any of these other countries. And in Singapore, 19% of their G.D.P. is financial services, and yet LGBT people are still criminalized on some way, shape or form at some level (specifically around spousal benefits, for example).

So if Ropes & Gray wanted to bring in your top lawyer and her wife, that would not necessarily be a possibility because the spousal visa in Singapore would not exist, even if they were legally married in the U.K. or the U.S. So the ability for companies to take this data and do things with it from an external perspective (which ties directly to brand, which ties directly to clients, which ties directly to everything else that companies ideally should be doing in the marketplace for their business reasons as well as their talent reasons), I think is huge. And I hope more companies will leverage this to do exactly that.

Peter Erichsen: I'm going to give Todd the last word. I'll just say again, on behalf of Ropes & Gray, how delighted and proud we are to have participated in this research.

Todd Sears: And I will echo Peter's thanks. I want to give Ropes & Gray one more shout-out for not just this report, but it's important that our firms know the amount of support Ropes & Gray has given us with this report. But for the second piece of research that we're launching this next week, as well.

If you're familiar with our global CEO briefs, which work for 21 countries around the world, with the idea that C-suite leaders can actually advocate (as I was mentioning) based off of economic opportunity and consequence. We created those briefs for these countries to create that opportunity and to provide a guidebook for companies. Ropes & Gray helped us with the legal pieces for those briefs, in addition to the new CEO briefs that we're launching this next week for all 50 states. We've created an LGBT business climate index that will literally score all 50 states based off of LGBT friendliness across 20 different dimensions. And Ropes & Gray and their team did the legal briefing for all 50 states for those reports as well.