Perspectives

Intentional Misgendering of Gender Non-Conforming Employee Deemed Sex Discrimination

An employer in the state of Washington recently agreed to pay monetary damages to a former supervisor after managers and other employees intentionally misgendered the supervisor. The supervisor filed an employment discrimination charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) and alleged that after the supervisor disclosed their gender identity and pronouns to the employer, fellow co-workers repeatedly and intentionally referred to the supervisor with pronouns inconsistent with the supervisor’s gender identity. The EEOC’s investigation found that the supervisor’s co-workers intentionally misgendered the supervisor for over six months, and the employer failed to intervene to stop the sex-based harassment despite receiving complaints about the misgendering.

The EEOC concluded the intentional misgendering violated Title VII of the Civil Rights Act of 1964. Title VII prohibits the discrimination and harassment based on sex, which includes gender identity, and gender identity encompasses transgender, non-binary, and other gender non-conforming individuals. After the EEOC’s investigation, the employer agreed to pay the supervisor monetary damages, revise its non-discrimination policies, conduct employee training, and provide additional training to managerial-level- employees and other employees involved in investigating complaints of discrimination and harassment. The EEOC emphasized that employers have a duty to intervene when an employee is harassed or discriminated against because of the employee’s gender identity.

The outcome in Washington is an important reminder to employers to be aware that it is illegal for an employee to be discriminated against or harassed based on the employee’s gender identity. This means an employee cannot be fired, demoted, or have any other aspect of employment negatively affected because of the employee’s gender identity. Furthermore, harassing an employee based on gender identity becomes illegal harassment when the harassment is either so pervasive or severe that it creates a hostile work environment.

The recent ruling in Washington is an example of pervasive harassment that created a hostile work environment because the supervisor endured intentional misgendering abuse for over six months. It is important to note that the EEOC’s finding of gender identity harassment was based on intentional misgendering over an extended period of time. Accidentally misgendering an employee, minor teasing, or offhand comments made about an employee’s gender identity, or isolated incidents of intentional misgendering generally do not rise to the level of illegal harassment unless they are so severe that they create a hostile work environment.

Moving forward, employers should review their non-discrimination policies to ensure they clearly inform employees that discrimination and harassment based on gender identity are prohibited. Employers should also consider providing their employees, especially managerial-level employees, with discrimination and harassment prevention training to create a healthy work culture and to equip employees with the tools to prevent and eliminate any discrimination or harassment in the workplace.

The recent case in Washington serves as a crucial reminder for employers to maintain a work environment free from discrimination and harassment based on gender identity. Ensuring compliance with Title VII of the Civil Rights Act of 1964 is not only a legal requirement but also a fundamental step toward fostering an inclusive and respectful workplace. Employers must proactively revise their non-discrimination policies and provide comprehensive training to all employees, particularly managers, to prevent and address any incidents of harassment or discrimination.

WFJ is here to support you in creating a healthy and legally compliant work environment. We offer expert training, advice, and consultation services to help your organization avoid the costly legal consequences of non-compliance with the Title VII. Let us assist you in building a workplace where all employees feel respected and valued.