Dentons has teamed up with Stonewall and New York University to develop a guide for employers about the data privacy implications of collecting LGBT data on employees within Europe.

Legality concerns

The publication is entitled GDPR: capturing data on sexual orientation and gender identity under the GDPR in the European Union, “Sexual orientation and gender identity data monitoring can help employers understand the barriers that their lesbian, gay, bi and trans employees might be facing,” said Lynn Pasterny, global workplace programs manager at Stonewall. While capturing LGBT data is commonplace in some countries and complemented by a supportive legal framework, a number of countries have legal limits on the types of data that can be collected. Likewise, the European Union’s General Data Protection Regulation (GDPR), introduced in 2018, places additional requirements for the collection and processing of special categories of personal data, including sexual orientation and gender identity. Marc Elshof, co-head of the Europe data privacy and security group at Dentons, commented “Many employers are concerned about the legality of introducing diversity monitoring programs, and in particular about data privacy requirements. This guide explains the compliance requirements of the GDPR and relevant national legislation across the EU, and how they relate to sexual orientation and gender identity data.”

Legal obligations

The project was led by pro bono and diversity manager Lamin Khadar, who brought together students from New York University and Dentons offices across Europe which provided pro bono support to analyse the relevant legal obligations under the GDPR and national legislation. Partners Mr Elshof (Amsterdam) and Eleanor Hart (London) and Of Counsel Tatiana Kruse (London) coordinated the Dentons team. In addition, law firms Setterwells and HPP, members of the Nextlaw Referral Network, contributed insight on Sweden and Finland respectively, while Baker McKenzie provided input on Germany. Ms Hart, partner in the people, reward and mobility team at Dentons, said “This project was an ideal fit for Dentons. Not only was it fully aligned with our commitment to pro bono legal support and diversity and inclusion, but it also allowed us to contribute our knowledge of employment law and data privacy to benefit both our clients and the community.” The guide is available here.