After the U.S. Supreme Court’s Bostock decision in June 2020, which found discrimination because of someone’s transgender status is prohibited under the umbrella of sex discrimination, the Equal Employment Opportunity Commission (EEOC) issued guidance expanding on the practical implications. The guidance highlights one form of harassment that can contribute to creating a hostile work environment based on gender identity—misgendering. Here are answers to four common questions employers have about misgendering in the workplace.
What Does It Mean to Misgender Someone?
Transgender and nonbinary employees may ask you to refer to them using language that expresses and corresponds with their gender identity, i.e, their internal sense of self and gender. Some people choose to go by a name other than the one their parents gave them at birth. And some people use pronouns that correspond with their gender identity rather than the sex they were assigned at birth. The pronouns might be gendered (e.g., she/her/hers and he/him/his) or nongendered (e.g., singular use of they/them/their; ze/hir/hirs).
Misgendering means intentionally or unintentionally referring to a person with language that doesn’t align with their gender identity. For example, you just hired an employee whose legal name is Alecia. During the onboarding process, the employee informs you he is a transgender man and wishes to be called Alex and referred to using the pronouns “he/his/him.” Calling Alex “Alecia” and using the pronouns “she/her/hers” to refer to the employee would misgender him.
When Does Misgendering Rise to the Level of a Harassment Claim?
Recent EEOC guidance has clarified that misgendering in the workplace can support a hostile work environment claim. But under what circumstances? If an employee makes an honest mistake or is completely unaware of the person’s gender identity, according to the EEOC, the unintentional conduct won’t violate Title VII of the Civil Rights Act of 1964. If intentional and repeated, however, misgendering can support a hostile work environment claim.
Here’s an example: Amy is a transgender woman who works in a donut shop. She informed her supervisors and coworkers of her gender identity and requested they call her Amy (rather than her male legal name) and refer to her using she/her/hers pronouns. Despite the requests, the supervisors and coworkers:
- Repeatedly and intentionally refer to Amy using her male name and pronouns;
- Ask her inappropriate and probing questions about her sexual orientation and anatomy;
- Assign her to a back-of-house role so customers won’t interact with her;
- Prohibit her from using the women’s restroom; and
- Subject her to a stricter dress code than cisgender female employees.
Customers witness the behavior and begin to intentionally misgender Amy and make offensive comments about her gender identity.
The facts are based on a Pennsylvania district court case. The court determined that, after Bostock, the employee had presented enough facts to move forward with her hostile work environment claim, based in part on various persons’ acts of intentionally misgendering her. Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115 (E.D. Pa. 2020).
What if a Customer/Client Is Misgendering an Employee?
The Triangle Doughnuts case highlights an important, but often forgotten, feature of hostile work environment claims: Customers can also contribute to creating a hostile work environment. The old adages “don’t argue with the customer” and “the customer is always right” have no sway under Title VII of the Civil Rights Act of 1964.
You have a legal obligation to protect employees from harassment perpetrated by customers. So if they intentionally misgender or otherwise harass a transgender or nonbinary employee, you should promptly step in to protect the individual and shut down the misconduct.
There are small steps you can take to prevent or at least mitigate customer-based harassment. For example, by ensuring coworkers and supervisors are using the correct language to refer to the employee, customers and other third parties will be encouraged to use the same language. And other small signals of acceptance can go a long way, such as providing the employee with a name tag reflecting the name they go by and perhaps including their preferred pronouns.
Best Practices
There are several ways you can proactively foster a more gender-inclusive environment and prevent and correct misgendering:
Encourage communication. Ask employees during the onboarding process what name they go by and what pronouns they use. Once you know their name and pronouns, talk to them about how they would like to inform others of their preferred language. Whether and how to come out to others at work is an intensely personal decision, so it’s important to let them choose the path. They might ask HR to communicate the information to others. Or they might want to inform their coworkers and supervisors themselves.
Consistent and exclusive use. Ensure the proper name and pronouns are used on the person’s e-mail, in the company directory, on their name tag, and in all documentation not requiring a legal name. For documents that do require a legal name, such as benefits paperwork and W-2s, use the person’s legal name, but attach a note indicating the name they go by and their preferred pronouns.
Policy revisions. Revise your equal employment opportunity, harassment, and productive workplace policies to clarify that gender identity is a protected classification and to explicitly include misgendering as conduct that is harassing, disruptive, and unacceptable.
Training. Train your workforce on the importance of always using correct names and pronouns when referring to employees. Remind employees of their duty to report intentional and repeated misgendering to HR.
Bottom Line
You have a legal obligation to protect transgender and nonbinary employees from harassment based on their gender identity. Misgendering of employees, whether by coworkers, supervisors, or customers, could contribute to a hostile work environment, so it’s important to promptly address and correct the conduct. You can mitigate the risk of harassment by taking small steps to cultivate a culture of inclusion:
- Providing sensitivity training;
- Encouraging open communication with transgender and nonbinary employees; and
- Affirming the use of the employee’s correct name and pronouns with consistent and exclusive reliance on the language.
Emily Matta is an employment law attorney with the law firm of Foulston Siefkin LLP in Wichita, Kansas. You can reach her at ematta@foulston.com.