In 2020, the US Supreme Court decided Bostock v. Clayton County, deciding that discrimination against LGBT employees because of their sexual orientation or transgender status violates Title VII because it is discrimination based on "sex." This means that employers cannot fire employees, refuse to hire employees, or harass employees because of their sexual orientation or gender identity. Harassment can take many forms, and recently the federal Equal Employment Opportunity Commission offered some guidance on what counts as harassment here and here. Under this guidance, "accidental misuse of a transgender employee's name and pronouns does not violate Title VII." So honest mistakes, like this, do not violate the law:
The EEOC basically says that once an employee crosses over the "honest mistake" line, "intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment." Of course, harassment would also include "offensive or derogatory remarks about sexual orientation (e.g., being gay or straight)" or "offensive or derogatory remarks about a person's transgender status or gender transition." Some examples of conduct that can create a hostile work environment include:
- Direct challenges to the employee's stated gender;
- Use of sex- or gender-specific terms incorrectly (like using the term "guys" or "dude");
- Questions about sexual orientation;
- Questions about anatomy.
Plus, employers should keep in mind that, while the legal tests for liability will vary, a "harasser" can be anyone: the employee's supervisor, coworkers, or even a customer, client, or vendor. No matter the harasser, an employer has an obligation to prevent the creation of a hostile work environment.
An employee victimized by gender identity or sexual orientation harassment should consult the employee handbook, manual, or other policy on harassment. If the employer doesn't have such a policy, this is evidence that the employer may be indifferent to the creation of a hostile work environment (and is therefore liable for the damage that environment creates). If the employer does have a policy, then the employee will likely want to navigate the policy as closely as possible – best case scenario, the employer corrects the problem under that policy. Either way, once the employee is at that stage, it is likely time to seek out legal counsel.
Finally, since the Bostock case extended Title VII legal protections to LGBT employees, this also means that internal reports and complaints of LGBT discrimination are protected from retaliation. Taken together, LGBT employees who feel they are enduring a hostile work environment based on their sexual orientation or gender identity should take steps to report the harassing conduct (and, of course, should speak to a lawyer about it).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
