The U.S. Supreme Court ruled in Bostock v. Clayton County, 140 S. Ct. 173 (US 2020) that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also protects both gay and transgender employees against discrimination. It was the first major victory for LGBTQIA+ advocates at the federal level in years, because it specifically included protection for transgender employees, who often face unique challenges and prejudices at work.
One of those challenges is the use of personal pronouns. Because pronouns can indicate gender, it is important for many transgender employees that their employers and colleagues use the pronouns that correlate with their gender identity or expression. The same principle applies to non-binary and non-conforming employees. If you have had your rights violated reach out to us at Haeggquist & Eck and get a consultation for your case.
Preferred Pronouns versus Personal Pronouns
As we continue to evolve and strive to be more sensitive, allies wanting to avoid misgendering have asked, “What are your preferred pronouns?” Although, well-intentioned, there is no need to qualify a pronoun by calling it a “preferred pronoun.” The definition of the word prefer is to like better or best; tend to choose. Deeming something a preference implies there are other options that work, they are just not their preference. We can simply ask, what are your pronouns? To be more inclusive, employers can create opportunities for employees to share pronouns if they are willing to share that information. However, employers cannot require them to disclose pronouns.
It begs the question: Does an employer’s failure to use an employee’s accurate pronouns amount to discrimination?
Is Misgendering a Form of Harassment or Discrimination?
Before the Supreme Court’s opinion in Bostock, the California Fair Employment and Housing Act (FEHA) protected California employees who are transgender, persons who are perceived to be transgender, or gender nonconforming, non-binary, and persons undergoing gender transition against discrimination. That includes harassment when an employee is discriminated against based on their gender identity or expression.
As previously mentioned, pronoun use is important for people to express their gender, especially if they identify as something other than what they were assigned at birth. Using a pronoun that contradicts one’s gender expression is known as misgendering. When people are misgendered, it can be demoralizing, create unsafe spaces, and negatively impact their mental health and ability to function in the workplace.
Can I file a lawsuit against my employer for using the wrong pronouns or misgendering me?
Mistakes happen and failing to refer to an employee by the correct name or pronouns by accident will not be enough to merit a lawsuit. However, there are situations when “accidents” are more than honest mistakes. If coworkers or supervisors consistently and intentionally refer to an employee with the incorrect set of pronouns or by a previous name, despite being corrected numerous times, this may constitute workplace harassment. If the employer fails to intercede with a meaningful solution to correct the misgendering, the employee may have grounds for a lawsuit.
Gender-related Sexual Harassment
Sexual harassment may not necessarily be related to actual sexual interest – it may, instead, be a type of bullying based on gender, gender identity, or gender stereotyping. In either case, verbal sexual harassment is defined as inappropriate sexual or gender-related statements that become so serious or so pervasive that they create a hostile work environment in which the employee becomes unable to perform their job function.
What If I Have not Changed My Legal Name and Gender?
The California Gender Recognition Act (SB-179) also known as the Gender Identity Bill was signed into law in 2017 and became effective January 1, 2019. This law states that every person deserves full legal recognition and equal treatment under the law to ensure that intersex, transgender, and nonbinary people have state-issued identification documents that provide full legal recognition of their accurate gender identity. This allows for people in California to change their gender on state identification and birth certificates, including choosing a non-binary gender marker.
Whether or not an employee has taken the steps to change their legal name and gender is irrelevant.
Employers may attempt to explain that they will only refer to employees by what is on their driver’s licenses or other legal documents, but there is no legal basis for this. They must address and refer to an employee by the name and gender the employee identifies. Employers cannot require documentation as proof of sex, gender, gender identity or expression as a condition of employment. Employers may not ask interview questions designed to detect a person’s sexual orientation or gender identity, such as inquiring about an applicant’s marital status, spouse’s name, or relation to household members.
Do You Need Legal Assistance?
We at Haeggquist & Eck, LLP understand these can be emotionally difficult experiences, especially when they are intentional. If you believe your employer or coworkers are harassing you, misgendering you, or discriminating against you because of your gender identity and expression, we can provide the legal support you need.