This blog was co-authored by Madison Zucco, Xan Wolstenholme-Britt, and Amy Frieder
According to a July 2022 Pew Research Center report, 5% of Americans under the age of 30 identify as transgender or non-binary. This is more than three times the reported percentage of adults in the 30 to 49 age range. Therefore, as younger generations enter the workforce, there will be a greater diversity of gender identity.
It is important for trans and nonbinary employees to feel safe and supported at work, and a fundamental way to do that is to use someone’s correct pronouns.
Being misgendered in the workplace can have a significant negative impact on an individual’s sense of safety, belonging, and productivity. It can create a hostile work environment, harm professional relationships, and contribute to feelings of anxiety and depression for trans or nonbinary individuals. If you have been misgendered at work and believe it has contributed to a hostile work environment, there are protections in place.
Transgender Rights in the Workplace
Federal law has prohibited employment discrimination against individuals on the basis of gender identity since the 2020 landmark case Bostock v. Clayton County. In that case, the Supreme Court ruled that employment discrimination based on sexual orientation or gender identity is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.
Because Title VII applies only to employers with 15 or more employees, it is important to note that some state and local anti-discrimination and human rights laws provide additional protections.
Is Misgendering at Work Illegal?
Misgendering can be considered a form of unlawful harassment in certain circumstances.
In the case of Lusardi v. Dep’t of the Army, the U.S. Equal Employment Opportunity Commission (EEOC) clarified that while inadvertent and isolated misgendering likely would not constitute harassment, persistent failure to use an employee’s correct name and pronouns may constitute unlawful, sex-based discrimination under Title VII if such conduct is either severe or pervasive enough to create a hostile work environment.
Such an environment involves harassment that is either so severe or pervasive that a reasonable person would consider it intimidating, hostile, or abusive, or when enduring the offensive conduct becomes a condition of continued employment.
Trans employees who endured harassment that included misgendering have successfully brought claims of a hostile work environment. See also Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154, 172 (D. Md. 2022); Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744, 758 (S.D. Ohio 2018). Therefore, if you are experiencing a hostile work environment that includes being misgendered at work, your employer may be in violation of Title VII.
If you believe you have been discriminated against on the basis of your gender identity or sexual orientation, contact an experienced employment attorney at Sanford Heisler Sharp, which has offices in New York City, San Francisco, Palo Alto, Atlanta, Baltimore, Nashville, San Diego, and Washington, D.C.