EEOC Cracks Down on Harassment of Transgender Employees
On October 25, 2024, the Equal Employment Opportunity Commission (”EEOC”) issued a press release stating it was suing a Michigan restaurant for discrimination. The EEOC alleged Culver’s violated federal law when firing a transgender employee and three of his colleagues after they complained about workplace harassment.
In this case, the EEOC alleges one employee in particular was openly hostile towards gay and transgender people. The former employee made many anti-trans comments to the trans employee, and insisted on mis-gendering him, as well as using his deadname, and publicizing his birth name without his consent.
“Mis-gendering” refers to using any pronouns (she/her, he/him, they/them, etc.) other than those chosen by the individual. “Deadnaming” refers to using a name a person no longer uses against their wishes, often after transitioning. The EEOC alleges these acts are unlawful, especially when repeated and intentional.
The complaint also alleges three of the transgender employee's colleagues reported the harassment to the general manager, but nothing was done to stop it. The EEOC alleges when the employees complained of the harassment, instead of investigating, the complaining employees were fired. The lawsuit alleges this conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees based on their transgender status, as well as prohibiting retaliation against employees who oppose or complain about sex-based harassment.
While only recently filed, this case serves as a reminder of two key things employers should keep in mind:
- harassment against transgender employees is unlawful; and,
- employers may be liable for their employees' harassment of other employees.
What should employers do?
The first thing is something all employers should do: create a respectful harassment-free workplace for all employees. Employees have differing backgrounds and beliefs, and sometimes they may conflict. In these moments, it is the responsibility of the employer to ensure everyone is free from harassment and to implement tools for respectful communication among employees. As shown in this case, an employer is alleged to have been made aware of harassment and nothing was done; then the employer got sued.
Cultivating and ensuring an environment where everyone--regardless of their sex, gender identity, sexual orientation, or other protected class—are free from harassment is the first step. It's not just the right thing to do. It's the legal thing to do.
The other takeaway from this case is recognizing the EEOC is continuing to enhance its enforcement of anti-discrimination laws based on transgender status or other sex-based harassment. Here, the EEOC alleges the prohibited behavior includes intentional repeated mis-gendering of an employee, as well as deadnaming, and publicizing a name given to someone at birth without their consent. To the EEOC, these all fall under sex-based harassment and/or discrimination.
