REFUSAL TO USE WORKER’S PRONOUNS COULD LAND A BOSS A LAWSUIT
QUESTION: One of my employees recently announced that he identifies as a woman, and asked us to use the preferred pronouns “she” and “her.” The worker doesn’t wear dresses or makeup or anything. For the most part, other workers are continuing to use male pronouns when referring to this employee. The worker came to me, asking me to do something about it. I said there isn’t much I can do. I can’t force other workers to use pronouns that don’t match what they see. This worker told me I’m discriminating against him (her?) by allowing other workers to “misgender” him (her?) and threatened to sue. Can I really be sued for this?
ANSWER: Yes, you really can. In 2020, the Supreme Court ruled in Bostock v Clayton County that prohibitions against discrimination “because of sex” in Title VII of the federal Civil Rights Act also bar discrimination on the basis of sexual orientation or gender identity. The discriminatory behavior prohibited includes unwelcome conduct, based on a person’s membership in a protected category like race, color, religion, sex, disability, age, national origin, or disability, that is so severe and pervasive that it creates a “hostile work environment.”
For example, a hostile environment for a female employee could be created by allowing male employees to display sexist materials in the workplace — things like “biker babe” posters, make sexist comments in front of their female co-workers, or refer to female co-workers as sweetie, cutie, honey, babe, hot stuff, etc. Allowing use of the “n-word” could be enough to create a hostile environment for a Black worker. Co-workers consistently calling a male employee by a female name, or vice versa, could also create a hostile work environment. But, if the use of the “wrong” pronoun is occasional and accidental, a Title VII violation would likely not be established.
Being referred to by pronouns that don’t match who you are is offensive to most people. Bob doesn’t want to be called “she” or “her”; Roberta doesn’t want to be referred to as “him.” Whether your employee presents as a woman or not, the worker has told you that, mentally and emotionally, that is how that worker perceives herself. If you do not require cisgender female workers to wear makeup, dresses and heels in order to be referred to by female pronouns, you should not require stereotypical female dress of a transgender employee who identifies as a woman.
That said, the recognition of transgender rights is so new that courts differ on what situations warrant protection, and how to treat competing rights.
In an Ohio case, for example, the Sixth Circuit ruled in favor of a professor who was disciplined after he had objected, on religious grounds, to addressing a biologically male student with female pronouns. The college’s decision to discipline the professor, even where he had offered to use no pronouns at all, could be a violation of First Amendment rights, the Court reasoned. But, in an Indiana case, the federal district court found that a music teacher’s religious-based objection to a requirement he use his trans students’ preferred names and pronouns could not overcome the school’s “duty to create a safe and supportive environment for all students.” Allowing the teacher to follow a policy of referring to all students by “last names only” created an undue hardship for the school where two transgender students had suffered “emotional harm” and the school was, legitimately, concerned about a lawsuit, the court said.
Other issues related to transgender status revolve around whether it is enough for people to “self-identify” as transgender, or whether some proof of a diagnosis of gender dysphoria, or steps toward gender transition (hormones, surgery) must be presented before transmen and women are entitled to legal protection or an accommodation.
However the issues around transgender rights are eventually resolved, the safest — and most polite — course for you to follow right now (assuming no workers have strong religious objections) is to ask all workers to use the pronoun an employee prefers — whether it is he, she, him, her, ze, zir or they.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
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