Employers May Not Want To Judge A Book By Their Cover

Growing up, my mom always taught my brother and me: never judge a book by its cover. Looks may be deceiving. Give people a chance. It’s sage advice.

Employers who fail to heed this common-sense advice may risk a federal discrimination lawsuit, as the City of Boise, Idaho is discovering. After a favorable determination—finding probable cause for discrimination—by the Idaho Human Rights Commission, a Boise Public Library employee and the American Civil Liberties Union filed a complaint in federal court against the City of Boise,  two library administrators, and one HR staffer seeking compensation for discrimination.

The former employee identifies as non-binary transgender, and their pronouns are they/their.

Why? Well, Here Are the Allegations 

The allegations describe discrimination and sexual harassment against the plaintiff, Jax, for their non-binary transgender identity. 

The complaint alleges that the City of Boise violated Title VII of the Civil Rights Act of 1964, which protects transgender individuals from sex discrimination.

The matter stemmed from two incidents in 2019. First, on their personal Facebook profile, Jax posted a link to a program they developed for teens where a local drag queen would talk about makeup and the annual Pride Month. The second incident involved a library patron who objected to the display of Pride merchandise at the branch where Jax worked. Jax explained to the patron they are a member of the LGBTQ+ community and are “sorry you feel that way.”

Jax advised their supervisors, and, in response, the former library director wanted them fired – over the objections of the employee’s supervisor and the city’s HR Department!

Stemming from these incidents, the Human Rights Commission found that the (also former) library director repeatedly called Jax by the name they formerly went by, objected to the employee’s use of their chosen pronouns, and intentionally misgendered them with she/her pronouns.

What’s the Law?

Last year, the Supreme Court of the United States ruled in Bostock v. Clayton, that an employer who fires or takes an adverse action against an individual merely for being gay or transgender violates Title VII’s prohibition of discrimination based on sex. Discrimination based on a person’s sexual orientation or transgender status constitutes sex discrimination, even if that was only part of the reason for an adverse action. SCOTUS specified:

…That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

Seems clear.

Lest the city think that the patron’s distaste for Pride can excuse the library director’s behavior, the Equal Employment Opportunity Commission (EEOC) shoots down that idea. In its brand-new guidance, which I wrote about here, the EEOC explains here that

an employer covered by Title VII may not fire or discriminate in any other way because customers or clients would prefer to work with people who have a different sexual orientation or gender identity. Employers also are not allowed to segregate employees based on actual or perceived customer preferences. (For example, it would be discriminatory to keep LGBTQ+ employees out of public-facing positions, or to direct these employees toward certain stores or geographic areas.)

An employer may not permit a customer’s view to excuse discrimination against an employee either.

Image by StockSnap from Pixabay

Wait, How Was The Employee Sexually Harassed? It’s All About Pronouns.

Sexual harassment is more than just unwelcome conduct based sexual advances.

As I talked about years ago in Sexual Harassment 101, to constitute a hostile work environment, first, the comments or conduct must be based on a protected characteristic, such as gender—the harassment must be because of the employee’s sex (or race, disability, age, etc). Do we have that here? It seems so. According to Bostock, conduct based on a person’s gender identity is based on “sex.”

Second, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Do we have that here? That’s for the court to decide. Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the employee (subjectively) considers it to be offensive and abusive, which Jax’s suit showed they did.

Does this mean an employer is liable every time another employee or supervisor forgets to use the correct pronoun?

No. What purpose would that serve? It’s the repeated intentional misuse that matters.

Indeed, the EEOC explains here that in its decision in Lusardi v. Dep’t of the Army, (EEOC Appeal No. 0120133395 (Apr. 1, 2015)), although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

Employer Takeaways

SCOTUS has determined that this is sex discrimination, and the EEOC explains exactly how employees are discriminated and harassed for such conduct. As we’ve seen this year, President Biden has made LGBTQ+ inclusivity a priority with several detailed executive orders.

Employers, assess your workers based on their merit and performance, not for their gender identity or sexual orientation.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.