Thursday, April 27, 2023

Intentional misgendering IS sexual harassment

Jane works as a cashier at a donut shop. She is a transgender female who identifies by a female name and female pronouns. Her supervisor, Lisa, however, refuses to use Jane's preferred gender. She uses Jane's male legal name, male pronouns, and "dude" when referring to her, despite Jane's frequent requests for her to use female pronouns and the preferred female name. Lisa would similarly encourage customers not to use Jane's preferred name or pronouns.

Did Lisa create a hostile work environment based on Jane's sex? 

You bet she did.

In Bostock v. Clayton County, the United States Supreme Court held that treating individuals differently because of their transgender status violates Title VII's prohibition on sex discrimination. 

Recent EEOC guidance has made it clear that the intentional misgendering of an employee can constitute an actionable hostile work environment based on sex. According to the EEOC:

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.

For these reasons, give serious consideration to implementing a "Pronouns in the Workplace" policy to support your transgender and gender nonconforming employees.

1.) Reaffirm your commitment to providing a safe and inclusive space for all, while assuring employees that you will support their pronouns of choice.

2.) Prohibit discrimination and harassment against employees because of their pronouns. 

3.) Respect privacy. The disclosure of pronouns is personal choice and is never mandated. 

4.) Support employees who choose to include their preferred pronouns in their email signature block and other communications.

5.) Explain that using incorrect pronouns will happen from time to time, and offer examples of how to best handle it. "I use she/her pronouns," or "I go by Jim, not Jane." "I'm so sorry; I forgot," or "Thanks for letting me know; I'll do my best moving forward."

6.) Communicate to employees that intentionally misgendering another is a disciplinary infraction subject to discipline up to and including termination.

So please don't intentionally misgender a coworker. It's not only the moral/human/decent thing to do, it'll also keep you out of court.