When Misusing “Sir,” “Ma’am,” and Gendered Pronouns Will — and Won’t — Amount to Gender Identity Discrimination Under Title VII

Two years ago, the U.S. Supreme Court declared that employment discrimination based on workers’ sexual orientations or gender identities constituted violations of Title VII. Since that time, the exact extent of federal law’s protection against gender identity discrimination remains an issue that is still developing. Whether you’re a worker who believes you’ve suffered this sort of harm or you’re an employer facing this type of charge, you definitely should consult a knowledgeable Atlanta employment discrimination lawyer with all due haste, who can advise you on the latest developments in the law and what your next steps should be.

As an illustration, we can look at all that has taken place just in the last six months.

In August, the Georgia Department of Corrections won a victory in a case regarding the interplay of preferred pronouns and gender identity discrimination. The employee, T.C. was a trans man who was AFAB (“assigned female at birth” or “born a biological female.”) In 2017, T.C. began hormone therapy. A year later, he legally changed his name.

T.C.’s life at the prison where he worked did not proceed smoothly after the transition. One supervisor allegedly called him “baby girl” on a “regular basis.” Additionally, according to the complaint, his co-workers called T.C. “ma’am” or “she” after he transitioned.

The trial court, however, sided with the department and threw out T.C.’s case. The key to the employer’s success was what the employee didn’t have in his complaint. Although he alleged “constant” harassment, his specific proof backing up that general assertion only laid out “about 17 recorded instances” over a 12-month span. That rate of occurrence was too infrequent to meet Title VII’s standard of “pervasive,” according to the court.

The court also declared that, although the instances of misgendering were evidence of rude and discourteous behavior, “simple rudeness and discourtesy,” in the absence of something more, isn’t “severe” under Title VII law.

The EEOC’s 2021 Guidance and Ensuing Federal Litigation

As T.C.’s case made its way through the federal court here in Georgia, the U.S. Equal Employment Opportunity Commission also attempted to take steps to publish guidance about what does and does not constitute gender identity discrimination. In June 2021, an EEOC guidance document said that accidental misgendering (such as using the wrong pronouns or using a trans person’s former name — sometimes called “deadnaming” — as a result of a good-faith mistake) is not a Title VII violation, but incorrect pronoun use or other misgendering could violate the law if done intentionally and repeatedly.

However, in October 2022, a federal judge in Texas vacated the guidance document, meaning that it has no practical effect on workers and employers at this time.

As some employment law practitioners have pointed out, even with the recent federal court rulings, employers may find value in taking a broadly protective view when creating or amending policies against gender identity discrimination (including issues like preferred pronouns and misgendering) to avoid becoming a “test case” in the future.

Whether you’re a worker or an employer, you need legal counsel who is fully versed in these laws and fully up-to-date on all the latest changes and their ramifications. The knowledgeable Atlanta gender identity discrimination attorneys at the law firm of Parks, Chesin & Walbert are here to help, offering advice that is both completely current and experience-driven. Contact us through this website or at 404-873-8048 to schedule a consultation.

Contact Information