If you’ve been keeping up with our series, you know that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on, among other things, sexual orientation or transgender status. You may be wondering whether Title VII prevents employers from using pronouns that are inconsistent with a worker’s gender identity.
This happens when, for example, a woman who has transitioned from a male is nevertheless constantly referred to as “him” or “he” instead of her new gender pronouns.
So the answer about a Title VII violation is that Title VII can, in fact, be violated in certain circumstances. The complained-of behavior – such as using the wrong pronouns to describe an employee – must be severe or pervasive when considered together with all unwelcome conduct based on the individual’s gender identity. And it must create a work environment that a reasonable person would deem intimidating, hostile, or offensive. So, although accidentally misgendering a transgender employee probably does not violate Title VII, intentionally and repeatedly using the wrong names and pronouns could.
The analysis is similar under New York’s Human Rights Law. In New York, an employer may not deliberately refuse to use an employee’s requested name, pronoun, or title if the refusal is based on the employee’s actual or perceived gender identity or expression.
For some, this is very new territory, and it’s natural to have questions. So don’t hesitate to contact The Coppola Firm with any questions.
The final installment in our Pride Month series is coming soon.
