Although the Supreme Court has yet to opine on the issue, many jurisdictions interpret Title VII as encompassing discrimination because of gender identity (and/or sexual orientation) as discrimination because of sex. Such was the case for a former transgender corrections officer for the Arizona Department of Corrections (“ADOC”). John Doe v. State of Arizona, No. CV-18-00384-PHX-GMS (D. Ariz. 7/8/19).
Mr. John Doe, a transgender male, worked at ADOC during his transition. He requested that his colleagues respect his transition, refer to him using male pronouns, and keep the fact of his transition private. His coworkers and supervisors, however, repeatedly referred to Doe as “she,” “he/she,” “it,” “d—,” and “b—.” His tires were slashed in the prison parking lot. Coworkers and supervisors also complained about Doe’s use of the male restroom and informed others, including inmates, that Doe used to be a female.
Doe reported these instances to his superiors, but ADOC repeatedly failed to take corrective action against the harassers and investigate Doe’s complaints. Instead, ADOC transferred Doe three times; following each transfer, Doe continued to suffer offensive comments regarding his transgender status. Doe finally resigned after roughly 10 years of employment with ADOC.
Doe brought hostile work environment and constructive discharge claims under Title VII. (The court noted that neither party contested that Title VII’s protections apply to individuals who are discriminated against because of their gender identity and that, as such, harassment against those individuals comprises sex discrimination.)
The court first found that Doe met the standards of his hostile work environment claim. For this, Doe needed to show that (1) a reasonable person in Doe’s position would find the workplace objectively and subjectively hostile toward transgender men, so as to create an abusive working environment and (2) ADOC failed to take adequate remedial and disciplinary action against the harassers. Doe did so with evidence of the regular and repeated comments and other treatment he suffered. The court also found that ADOC disregarded Doe’s safety by, for example, informing inmates of Doe’s transgender status and failing to investigate the tire slashing incident. It concluded that a jury could also find that ADOC failed to take sufficient remedial action against Doe’s harassers (citing Ninth Circuit precedents that a transfer without reprimand of the harasser is insufficient to meet Title VII standards, and failure to interview witnesses may demonstrate inadequate remedial action).
The court denied Doe’s constructive discharge claim. Looking only at the conduct closest in time to Doe’s resignation, the court found that it simply did not create the kind of abusive working environment that would compel an individual to quit employment.
Even if the Supreme Court ultimately decides that Title VII does not encompass discrimination on the basis of transgender identity, many jurisdictions have state and local laws protecting this class of employees. As such, employers should be aware of the kind of conduct that can create a hostile work environment, such as ignoring the use of incorrect pronouns, talking inappropriately about a transgendered individual’s transition, and failing to properly investigate complaints of the same.