Folks, Misgendering An Employee Can Be Severe And Pervasive Enough To Create A Hostile Work Environment.

PF
Pierson Ferdinand

Contributor

Pierson Ferdinand
I'm going to tell you about a transgender man who worked for three years as a sergeant for a state prison.
United States Law Department Performance
To print this article, all you need is to be registered or login on Mondaq.com.

I'm going to tell you about a transgender man who worked for three years as a sergeant for a state prison. While working at the prison, he began the process of medically and socially transitioning to align with his gender identity. He underwent hormone replacement therapy, obtained a legal name change, and decided to live openly as a man.

Since he had to disclose his gender identity at work, the employee contacted Human Resources. On a phone call with the HR director, during which the employer inquired if he "had the surgery," the employee could hear people laughing.

As others learned about the man's transition, he endured what the Eleventh Circuit Court of Appeals described as "constant and humiliating harassment."

Coworkers called [him] 'baby girl.' They went out of their way to call him 'ma'am' on prison-wide radio communications and in front of inmates...HR staff called [him] 'ma'am' in front of new cadets...[Coworkers] called him 'that' and 'it'...They jokingly speculated he must have a dildo in his pants. They snickered, pushed him, and followed him. Dangerously, given his position and need to command respect from inmates, they disobeyed and undermined him. And this harassment came from all fronts—supervisors, subordinates, and peers alike— despite his repeated complaints to his supervisors, prison management, and human resources personnel.

The evidence showed that 34 coworkers had harassed the plaintiff, and despite complaining through various channels, the behavior persisted for almost a year.

The plaintiff alleged that the defendant had fostered a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. The trial court disagreed and entered summary judgment in the defendant's favor. It concluded that the harassment the plaintiff suffered was not objectively "severe or pervasive." That is, a person in the plaintiff's shoes would not have found the behavior he endured to be hostile or abusive.

The objectivity test has four elements: (1) its frequency, (2) its severity, (3) whether it is physically threatening or humiliating, and (4) whether it unreasonably interferes with job performance.

Here, 34 people harassed the plaintiff "daily"—"three or four" times each day for at least a year. Despite the plaintiff's objections, including confronting his harasser directly, the plaintiff endured hostility — both verbal and physical — from coworkers, supervisors, and HR. There was plenty of evidence to support the toll this humiliating behavior — including HR's laughing — had on the plaintiff. The harassment also undermined his authority and ability to command subordinates' obedience within the defendant's rank structure.

In all, a reasonable jury could conclude that misgendering, threats of violence, and other harassment that a transgender man endured could be severe and pervasive enough to create a hostile work environment.

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.

Folks, Misgendering An Employee Can Be Severe And Pervasive Enough To Create A Hostile Work Environment.

United States Law Department Performance

Contributor

Pierson Ferdinand
See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More