I fail to understand why the preferred identity of an individual offends another or is cause for ridicule and harassment.
I mean, why?
In the workplace, such conduct may well lead to investigations and lawsuits.
In fact, the Equal Employment Opportunity Commission (EEOC) just announced that it settled a claim made by an employee (a supervisor) who alleged that after disclosing their gender identity and pronouns to their employer, other managers and staff continued to intentionally refer to them using their old pronouns - you know, the ones that did not align with their gender identity.
If true, this is sexual harassment. Title VII of the Civil Rights Act of 1964 proscribes sexual harassment by coworkers and third parties in the workplace.
The EEOC claims its investigation found evidence confirming that the alleged sex-based harassment continued for more than six months, while the employer, a nursing facility in Washington State, failed to take appropriate actions despite multiple complaints about the alleged harassment.
And now, the employer will pay the price.
Remember, the EEOC's recently issued final guidance informed and warned employers that intentional, incessant misgendering constitutes sex-based harassment.
Does this mean an employer is liable every time another employee or supervisor forgets to use the correct pronoun?
No. It's the repeated intentional misuse that matters.
"Accidental slip-ups may happen, but repeatedly and intentionally misgendering someone is a clear form of sex-based harassment,"
said Elizabeth M. Cannon, director of the EEOC Seattle Field Office, about this settlement.
Indeed, courts agree.
In Copeland v. Ga. Dep't of Corr., 97 F.4th 766 (11th Cir. 2024), the Eleventh Circuit Court of Appeals vacated a summary judgment decision in favor of the employer, noting that while an occasional mistake using the incorrect name or pronouns will not create liability, misgendering an employee can be sufficiently severe or pervasive so as to support a claim of hostile work environment under Title VII.
Even before the EEOC's 2024 guidance, and before the U.S. Supreme Court's landmark case Bostock v. Clayton County, which I wrote about here, unlawful harassment included conduct based on sexual orientation and gender identity.
For example, the EEOC explained here that in its decision in Lusardi v. Dep't of the Army, (EEOC Appeal No. 0120133395 (Apr. 1, 2015)), although accidental misuse of a transgender employee's preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.
What Should the Employer Have Done?
Under Title VII, an employer must exercise reasonable care to prevent and correct promptly any harassment.
An employer is liable, however, for a hostile work environment if it failed to act reasonably to correct harassment about which it knew or should have known.
What kind of corrective action should this employer have taken?
It must conduct a prompt and adequate investigation and then act appropriately based on the findings of that investigation.
Now, a "prompt" investigation does not mean same day, but it does not mean 6 weeks from the date of the complaint either.
Employer Takeaways
Employers who want to comply with Title VII's mandates and the EEOC's guidance can do the following:
- Include clear, detailed anti-harassment and anti-retaliation policies in your employee handbook along with plenty of examples, including those based on gender identity and sexual orientation such as intentional misgendering; "outing" a person (i.e., disclosing a person's sexual orientation or gender identity without permission); or harassing conduct because someone does not present in a manner that would stereotypically be associated with that person's sex;
- This may seem like a no-brainer, but ensure HR disseminates these anti-discrimination and -harassment policies throughout the company, updates them as needed, and that employees such policies.
- Convey that employees will not be retaliated against for reporting discrimination or harassment.
- In that same handbook, encourage and provide a written procedure for reporting, and explain that management will promptly investigate claims of unlawful harassment.
- Then, as emphasized here, follow this policy, documenting the process along the way. Have clear standards for accountability and actions that merit discipline.
- Provide regular, interactive training to your employees, yes, but include also your supervisors and HR staff as well so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, etc.). Give examples, fact-based scenarios, pop quizzes, whatever.
- Leadership matters. Senior leaders should promote harassment prevention to show commitment and lead by example.
As the Washington State EEOC director stated in the settlement announcement:
Employers have a duty to intervene when employees—including transgender, non-binary, and other gender non-conforming individuals—are treated maliciously in the workplace because of their gender identity. Training can be a powerful tool for informing employees of their rights and proactively preventing harassment.
No argument there. We've been talking about the effectiveness of bystander intervention training for years.
Employers, we must do better to educate the workforce and correct sex-based harassment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.