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

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 LGBTQ+ 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.

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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?

Misgendering & Harassment

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?

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

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.

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. 

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. 

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.

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

5 Examples of Discriminatory Company Policies

When you think about discrimination at work, you might think a lot about how people treat each other. While it’s true that discrimination is particularly noticeable on such a personal level, it can also exist on an institutional level through a company’s policies.

Here are five examples of company policies that may be discriminatory. If you believe you were subjected to a discriminatory policy at work, get in contact with an employment law attorney to assess your situation.

1. Dress Codes & Grooming Standards

Many companies have a dress code and grooming policy. Generally speaking, if a company wishes to enforce certain dressing and grooming standards for its employees, that’s legally permissible.

However, bans on culturally or religiously significant garments, such as headscarves or skullcaps, can discriminate against one’s religion. And grooming standards that ban afros, beards, dreadlocks, and/or braids can discriminate against one’s race or religion.

These policies may also discriminate based on sex or sexual identify if they compel transgender or gender non-conforming employees to dress or groom in a manner that contradicts their gender identities or expressions.

2. Mandatory Retirement

In most professions, forced retirement based on age is illegal. Although mandatory retirement policies were once common, this practice was prohibited by the Age Discrimination in Employment Act (ADEA). The ADEA protects employees who at least 40 years old against discrimination based upon their age. This means that employees generally can’t be fired or compelled to resign simply because they’ve reached 65 or a certain age.

That said, there are a few exceptions to this general rule. An employer may consider age for the following:a. Public Safety Officers – such as firefighters;

b. Executives and policy makers – if the employee has worked for at least the past two years as an executive or in a high policy making position, and is entitled to an annual retirement benefit of at least $44,000 from the employer; and

c. Bona Fide Occupational Qualification (BFOQ) – an employer may set an age limit for a job if

(i) substantially all people older than the age limit would be unable to perform the job; or

(ii) Some people over the age limit would be unable to perform the job, and testing each person individually to determine if she could perform the job would be impossible or impractical.

3. Compulsory Participation in Religious Holidays & Observances

Many employers consider themselves to be faith-based even when the purpose of character of their business isn’t religious. An example might be a hardware store whose owners are deeply religious and strive to run their company according to a certain religious doctrine.

If the owners create policies that compel their employees to participate in religious holidays and observances, these are likely illegal as they impose religion upon workers. The employers would also open themselves up to liability if they attempted to discriminate on the basis of employees’ sex, religion, race, disability status, or another protected characteristic, using their own religious beliefs as a cover.

4. Pregnancy Termination Policies

For many years, employees who could become pregnant risked their jobs when they wanted to expand their families. The Pregnancy Discrimination Act of 1978 gave workers the protection they needed against employers who sought to discriminate against those who became pregnant.

Under no circumstances can employers have general policies that terminate pregnant employees. Quite to the contrary, employers are actually obligated to provide reasonable accommodation to pregnant employees who need it to continue performing essential job functions.

When it comes time to give birth or bond with new children, employees are further protected by the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) to go on unpaid job-protected leave.

5. ‘U.S. Citizen-Only’ Policies

Citizenship status and national origin are two important protected characteristics. This means that employers can’t base any decisions regarding someone’s employment on them. It’s illegal for employers to adopt or enforce any policies that require their employees to be U.S. citizens unless federal, state, or local laws require U.S. citizenship for a particular job.

We Represent Employees Who’ve Experienced Discrimination

If you have been discriminated against, retaliated against or wrongfully terminated because of a company’s discriminatory policies, you may have a claim against your employer for damages, and we at Haeggquist & Eck, LLP can help. Get in touch with us today to schedule a free consultation where you can discuss your situation with an experienced attorney.

For more information, please contact us online or call (619) 342-8000 today.

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