Imagine this scenario: An employee includes their preferred gender pronouns in their email signature, which has become a common practice in the modern workplace. Another employee repeatedly refuses to use those pronouns, misgendering the first employee on multiple occasions. The first employee submits a complaint to human resources. What legal obligations, if any, does this situation present for the employer?
Gender Identity Is a Protected Status
Laws that prohibit discrimination based on a protected status generally also prohibit harassment on the basis of those protected classes, such as race, religion, or sex, among others. Harassment issues arise when an employee is subject to mistreatment based on a protected status.
Gender identity is a protected status at the federal level and in many states and municipalities. Since its passage, Title VII of the Civil Rights Act of 1964 (Title VII) has prohibited sex-based discrimination. In 2020, in Bostock v. Clayton County, 590 U.S. 644 (2020), the Supreme Court held that the language prohibiting discrimination based on sex included prohibitions on discrimination based on sexual orientation and gender identity. Similarly, even before the Bostock decision, many state laws, such as the Colorado Anti-Discrimination Act, already prohibited discrimination based on gender identity.
Earlier this year, the Equal Employment Opportunity Commission (EEOC) finalized guidance clarifying that because gender identity discrimination is prohibited under Title VII, harassment based on gender identity is also prohibited. Given gender identity harassment is prohibited, the question becomes when does misgendering rise to the level of illegal harassment?
When Does Misgendering Become Harassment?
Under the EEOC’s new guidance, not all instances of the misuse of an employee’s preferred gender pronouns constitute harassment. According to the guidance, harassing conduct based on gender identity includes “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering).” Presumably, therefore, one-offs or mistaken statements by colleagues will not rise to the level of illegal harassment for the purposes of federal law.
To illustrate, the EEOC cites the holding of the United States Court of Appeals for the 11th Circuit in Copeland v. Georgia Department of Corrections, 97 F.4th 766, 770 (11th Cir. 2024). In Copeland, a transgender man worked as a corrections officer. The corrections officer was repeatedly subjected to comments from numerous coworkers and inmates who misgendered him. The district court dismissed his harassment claim under Title VII. The 11th Circuit reversed, holding that a jury could find that “each day, when he reported to work, his supervisors, subordinates, and peers publicly humiliated him because his gender identity differs from the sex he was assigned at birth. They did so notwithstanding his complaints to every level of prison leadership. Title VII does not countenance such behavior.”
State laws may analyze situations of misgendering differently, requiring far less severe treatment than was at issue in Copeland for an employee to succeed on a claim. For example, in 2023, Colorado passed the Protecting Opportunities and Workers’ Rights Act (POWR Act), which lowered the standard an employee must prove to establish a claim of harassment by removing the severe and pervasive requirement under federal law.
Under this new standard, an employee may be able to succeed in a claim of harassment based on misgendering that does not rise to the severity outlined in the EEOC guidance. Employers must therefore be vigilant in monitoring potential harassment issues and taking appropriate action quickly when warranted.
Employers, however, must also be cognizant of state and federal anti-discrimination laws’ general protections against discrimination based on religion. Some employees may assert that the use of preferred gender pronouns violates their religious beliefs. Under such circumstances, employers will be forced to reconcile their obligations with respect to gender identity and religion as protected classes.
This conflict is a quickly developing area of law for which there is not yet any clear answer. Last year, in Groff v. DeJoy, 600 U.S. 447 (2023), the Supreme Court established a new standard for determining when an employer may deny an employee’s request for a religious accommodation as an undue hardship. Indeed, a former teacher’s lawsuit against a school is currently pending before the United States Court of Appeals for the Seventh Circuit. The teacher is alleging religious discrimination against the school for implementing a policy of using students’ preferred gender pronouns.
The outcome of that case will hinge on how the Seventh Circuit applies the new Groff standard. In light of these complicated nuances, employers under such circumstances are strongly encouraged to consult with counsel.
Practical Takeaways for Employers
If an employer receives a complaint regarding the misuse of preferred gender pronouns, what should the employer do? Under the new EEOC guidance, the employer should investigate the allegations, and if those allegations are substantiated, take appropriate corrective action. What constitutes appropriate corrective action will vary depending on the specific circumstances (and should be determined in consultation with counsel), but it could include training, discipline, or even termination.
Employers Council has many resources to help employers navigate nuanced harassment issues, such as trainings on harassment prevention and investigation services. If you are faced with a potential harassment situation, whether based on gender identity or another protected class, please reach out to us.
Miller Jozwiak is an attorney for Employers Council.