Pronouns and Coworkers and Misgendering (Oh My!)

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

January 29, 2020

Pronouns – those articles of speech referring to the person other than by name – have become complicated. My law firm writes a lot (articles for L&E publications, monthly electronic E-Updates, E-Lerts to report actionable “new stuff” and, of course, this blog). In the “old days” we used the pronoun “he” as the universal. Then, in defiance of the “patriarchy” the term he/she or (s)he was substituted. We came to recognize that the language we use impacts attitudes about “who belongs.”

Now, societal perceptions of gender (and “who belongs”) have been challenged, as many have adopted the view that gender is a continuum rather than a binary conditon. The pronoun “they/them” has been recognized officially as an appropriate alternative for prose (although I still have to admit, because it has long represented the plural I find it hard to adapt).  Countries where the language naturally divides words into masculine and feminine create special challenges in adapting, as one young blogger noted after a study abroad.

But, the issue of “misgendering” (using a person’s non-preferred pronoun) has caught my attention in particular because it has become a hot workplace topic. The website Diversity Best Practices suggests that inclusive workplaces are one where individuals introduce themselves and specify their preferred pronoun. Good enough.  But what about misgendering as a form of workplace harassment?

The U.S. District Court for the District of Maryland recently examined a case in which a transgender employee claimed hostile environment harassment under Title VII after announcing an intention to live as a woman rather than a man.  Prior to the transition, a supervisor met with the work team to convey that henceforth the employee now wished to be referred to as “her” and “she” and should be treated with dignity and respect. The employee claimed that many employees did not follow this directive, and intentionally used the wrong pronoun, among other hostile acts. In addition, she alleged that after she made an internal complaint about the misgendering, she was terminated for a “bad attitude” – i.e. as retaliation for speaking up.

The court granted a motion to dismiss the harassment claim. Although noting that the question of whether Title VII covers non-binary based sex discrimination claims is undecided (and before the U.S. Supreme Court this term), the court found that, regardless, the plaintiff failed to plead sufficient facts to support a hostile environment.  However, the court permitted the retaliation claim to proceed because the complaint plausibly alleged that the employee’s “‘bad attitude,’refers to her complaints  about the treatment she had received from her coworkers on the basis of her sex, sex stereotyping, gender, and gender expression.”

What does all of this add up to? Whether Title VII applies to non-binary gender, many states (Maryland included) protect individuals based on gender identity or expression.  Regardless of individual opinions about non-binary gender and using “they” or “ze” in place of he/she (or, for that matter, he or she for someone who used to identify as the other), refusing to respect an individual’s preferred pronoun may run afoul of state law. That is because if it is part and parcel of a hostile environment or leads to a termination of persons for refusing to accept the acts of “misgendering” them, it may constitute unlawful discrimination or retaliation .

Employers, take note!