Ask The Lawyer By: Daniel A. Gwinn, Esq. – Words Matter
QUESTION: A newer employee recently informed us that the pronouns he prefers to use are “she/her/hers.” The employee is male, and, while he has long hair, does not dress in a stereo-typically feminine way (makeup, skirts, high heels). He says he identifies as female. Do we have to honor his/her request?
ANSWER: Honoring the request, while it might initially feel awkward to you, is the courteous thing to do. Think how you might feel if people consistently referred to you by a pronoun that does not match who you are – being referred to as “he”, for example, when you’re a biological woman who fully embraces her female identity. But, beyond courtesy, you may be required, legally, to refer to the employee by the pronoun of her choice. (We would note that clothes do not make the woman: Many women, who identify as female, do not wear makeup, skirts and dresses and high heels.)
Under some interpretations of Title VII of the Civil Rights Act, and under the current interpretation of Michigan’s Elliott-Larsen Civil Rights Act, discrimination “because of sex” includes discrimination based on gender identity or sexual orientation. By extension, failure to use the pronoun with which a transgender or genderfluid person identifies is a form of discrimination.
In its guidance on the issue of sexual identity and orientation discrimination, the Equal Employment Opportunity Commission, states “intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees” is a form of harassment based on sex, and therefore sex discrimination. The EEOC is the agency charged with enforcing Title VII.
In 2015, the EEOC ruled an army supervisor’s repeated references to an employee, a transgender woman, as “Sir,” and his repeated use of her former pronouns, created a hostile work environment for the woman. Tamara Lusardi v John M. McHugh, Secretary, Department of the Army.
However, the EEOC’s interpretation of Title VII may be overruled. Last October, the U.S. Supreme Court heard oral argument in three cases that had held, on varying grounds, that sexual orientation and/or gender identity are protected under the law’s prohibition against discrimination” because of sex.” The Supreme Court’s ruling, expected this spring, could either firmly establish that LGBT people are protected from employment discrimination or, as is currently the case in 29 states, that it is permissible to fire a worker based only on his or her sexual orientation or identity. If the latter view is upheld, employers would have no obligation to honor an employee’s pronoun preferences, and employees could be at risk of discharge for requesting a pronoun that does not match their biology.
Newer entrants into the workforce are more likely to believe the law protects them from discrimination based on orientation or gender identity and to view pronouns as a matter of choice, not destiny. Allowing individuals to use a preferred pronoun, rather than the pronoun associated with their biological gender is becoming increasingly common on college campuses. According to Campus Pride, a nonprofit that works “to create a safer college environment for LGBT students”, 260 colleges allow students to use a chosen first name, instead of their legal name on campus records and documents, 42 colleges enable students to indicate their preferred pronouns on course rosters. The University of Michigan has been allowing students to designate a personal pronoun with the university and have that pronoun reflected on class rosters since 2016.
And the pronouns used are not limited to he/she, him/her, his/hers and himself/herself. Some people prefer a gender-neutral pronoun, and use the third person plural – they, theirs, themselves. Still others use a new set of pronouns, sie, hir, hirs, hirself or zie, zir, zirs, zirself.
You would probably agree it would be insulting for employees to refer to a male co-worker as “she” and “girl”; use of a pronoun that does not fit a worker’s gender identity – even if it accords with his or her biology — is no less offensive. Bottom line: Using the pronoun of your employee’s choice does not cost you anything, may be legally required, and can mean a great deal to your employee
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law