By Jennifer Price, Senior HR Consultant
The use of preferred names and gender pronouns has become a big topic in the Human Resources world. Using a person’s preferred pronoun provides gender affirmation, signals respect, and creates a more welcoming and tolerant environment. Being misgendered (i.e., being referred to with a word or pronoun that does not reflect the person’s gender identity) can be a hurtful and invalidating experience. It can also lead to legal claims relating to harassment.
Title VII of the Civil Rights Act is a federal law that prohibits discrimination and harassment on the basis of race, color, religion, national origin, and sex. Sex discrimination under Title VII includes both sexual orientation and gender identity (i.e., one’s inner sense of one’s own gender). Title VII applies to employers that have 15 or more employees and protects job applicants and employees.
“Transgender” is a diverse umbrella term referring to people with diverse gender identities and expressions that differ from stereotypical gender norms. The US Equal Employment Opportunity Commission (EEOC), a federal agency responsible for enforcement of Title VII, has provided guidance on when the incorrect use of preferred pronouns can rise to the level of unlawful workplace harassment. Intentional and repeated use of a name or pronoun that is not preferred by a transgender employee could contribute to an unlawful hostile work environment which is illegal under Title VII. While accidental misuse of an employee’s preferred name or pronoun, simple teasing, offhand comments, or isolated incidents that aren’t very serious are not generally considered unlawful under Title VII; however, the law does consider it unlawful harassment when it is so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). In addition, some states may have broader or different standards, so be sure to check your state’s law regarding what is considered unlawful harassment.
Below is a list of considerations to reduce the risk of a harassment claim relating to the use of preferred names and pronouns:
- Consider including pronouns in your email signature to foster a culture of inclusivity. However, it’s important to remember that pronoun disclosure should remain an individual choice, and not a mandate. A mandate can create unnecessary pressure and stress.
- From hiring paperwork to employee questionnaires, giving an employee a choice helps make a healthy work environment. However, again make sure to include an “N/A” or “I would prefer not to state” option on these types of documents because an employee may not be ready to disclose their gender identity to their colleagues.
- Do not ask medical questions. Be mindful to keep conversations around gender away from any questions about surgeries, treatments, or other personal medical matters.
- Refer to employees by the name and pronoun with which they identify.
- Address any issues or concerns related to misuse of pronouns immediately.
- Use neutral language in emails. Avoid greetings like “welcome ladies” or “hi guys.”
- Use “they or their” wherever possible instead of “his or her.”
- Educate your employees on your anti-harassment policy, and issue clear guidelines on the use of preferred names and gender pronouns in the workplace.
In addition to reviewing policies and educating to ensure legal compliance, employers should continue to foster an inclusive workplace where all employees are treated with dignity and respect.
If you are an employer with additional questions on this topic or any other HR topics, we are here to assist you and your organization. Feel free to call our HR Helpline at 855-873-0374.
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