Eleventh Circuit: Misgendering Employee Can Support Claim of Hostile Work Environment
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APPLIES TO All Employers with Employees in AL, FL, and GA |
EFFECTIVE March 28, 2024 |
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Quick Look
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Discussion
In Copeland v. Georgia Department of Corrections, the Eleventh Circuit Court of Appeals said that misgendering an employee can be “severe and pervasive” enough to support a hostile work environment claim under Title VII of the Civil Rights Act. Here, a transgender male sergeant at Rogers State Prison in Georgia disclosed his transgender identity and requested the use of he/him pronouns when referring to him. Instead, coworkers purposely called him “baby girl,” “ma’am,” and “her” on prison-wide communications and in front of inmates. The plaintiff also stated he had a non-gendered call sign which could have been used but coworkers instead used the gendered language intentionally. When the plaintiff first informed the Human Resources Department (HR) of the intention to transition, HR requested more documentation than law allowed and instructed him to continue using the women’s restroom. HR also shared confidential information and publicized the transition.
To prevail on a hostile work environment claim, the court requires a plaintiff to prove five elements: (1) he “belongs to a protected group”; (2) he was “subject to unwelcome harassment”; (3) the harassment was “based on a protected characteristic”; (4) the harassment was “sufficiently severe or pervasive to alter the conditions of” his employment; and (5) his employer was “responsible for” the hostile work environment. To show that the conduct was “severe and pervasive,” the court found that the plaintiff was able to prove four factors. Specifically, the treatment he received was frequent, severe, physically threatening or humiliating, and negatively impacted job performance.
Under the totality of the circumstances, a reasonable jury could conclude that the harassment the plaintiff faced was objectively severe or pervasive enough to alter the terms or conditions of his employment. The plaintiff also claimed retaliation and a failure to promote; however, the court remanded these two claims to the lower court for additional proceedings.
Action Items
- Have appropriate personnel trained on discrimination and harassment prevention.
- Maintain confidentiality of personnel health information.
- Review policies to include appropriate protections for transitioning personnel.
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