Misgendering Creates Hostile Work Environment, Says Eleventh Circuit

Can an employer or coworker persistently using a transgender worker’s wrong name or identified pronoun create a hostile work environment in violation of Title VII?

That is the question Bradley attorneys Christina Seanor and Anne Yuengert pose in a recent post on the firm’s website.

Yes it can, the attorneys write, if you are litigating in the Eleventh Circuit Court of Appeals. The case in question, Copeland v. Georgia Department of Corrections, may be the first time an appellate court has ruled that persistently referring to someone with a pronoun different than the one they identify with may constitute harassment.

Plaintiff Tyler Copeland filed an Equal Employment Opportunity Commission (EEOC) charge and sued his then-employer, the Georgia Dept of Correction, in federal court. Copeland, who came out as transgender at work, raised three claims: a hostile work environment, failure to promote, and retaliation. The lower court granted summary judgment to the defendant on all three. In respect to a hostile work environment, it ruled that Copeland faced “simple rudeness and discourtesy.”

The Eleventh Circuit affirmed on failure to promote, and retaliation, but reversed on the hostile work environment count. It said the district court was in error when it found that Copeland had not presented sufficient evidence that the harassment was severe or pervasive enough to alter the terms and conditions of employment. It found Copeland’s testimony full of instances of harassment that were “intentionally insulting and degrading.”

Judge Jill Pryor, who wrote the opinion, described how Copeland endured incessant taunting, threats, and insubordination by supervisors and subordinates after he came out as transgender, conduct the court found “severe and pervasive” under all four factors that guide the analysis: its frequency; its severity; whether it was physically threatening or humiliating; whether it unreasonably interfered with job performance.

The authors caution that at this stage of the proceedings, the court considers the facts in the light most favorable to Copeland. It is unclear how his coworkers and supervisors will testify when the trial court reconvenes. They also note that the decision isn’t surprising given EEOC guidance that intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to a hostile work environment.