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Is It Discrimination If My Employer Doesn’t Use My Preferred Pronouns?

June 28, 2021
By Haeggquist & Eck

The concept of preferred pronouns is anything but new, but it has received renewed attention ever since the U.S. Supreme Court ruled on Bostock v. Clayton County last summer.

The court ruled 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 LGBTQ+ advocates at the federal level in years, because it specifically included transgender employees, who often face unique challenges and prejudices at work.

One of those challenges is the use of one’s preferred pronouns. For those who might need a refresher in grammar, a pronoun is something like “he,” “her,” or “them.” It’s a word that English speakers use in reference to a person when saying their name feels repetitive or unnecessary. Because pronouns can indicate gender, it’s important for many transgender employees that their employers and colleagues use the pronouns that correlate with their gender identity or expression.

It begs the question: Does an employer’s failure to use an employee’s personal pronouns amount to discrimination?

Misgendering & Harassment

Before Bostock v. Clayton County, the California Fair Employment and Housing Act (FEHA) protected transgender employees against discrimination in the state. That includes harassment when an employee is discriminated against based on their gender identity or expression.

As we 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.

Misgendering is bound to happen when someone has just transitioned, especially if one’s coworkers were familiar with them going by a different name or using a certain set of pronouns for years. Mistakes will happen, and failing to refer to a transgender employee by the wrong name or pronouns by accident won’t be enough to merit a lawsuit.

There are times, though, when “accidents” are more than honest mistakes. If coworkers or supervisors who 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.

What If I Haven’t Changed My Legal Name & Gender?

Employers may attempt to explain that they will only refer to employees by what’s 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 prefers.

Whether or not an employee has taken the steps to change their legal name and gender is irrelevant.

Do You Need Legal Assistance?

If you’re a transgender, gender non-conforming, or genderfluid employee, you may have experienced misgendering at work. 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 because of your gender identity and expression, we can provide the legal support you need.

For more information about how Haeggquist & Eck, LLP can help, contact us online or call (619) 342-8000 to schedule a free initial consultation.

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