/>iIf an employer or coworker persistently uses a transgender worker’s wrong name or identified pronoun, can that constitute a hostile work environment in violation of Title VII? In Copeland v. Georgia Department of Corrections, the Eleventh Circuit Court of Appeals said it could, vacating and remanding a trial court’s grant of summary judgment on a transgender worker’s Title VII hostile work environment claim.
Since the Supreme Court’s decision in Bostock v. Clayton County, the law is clear that Title VII protects transgender employees from discrimination on the basis of sex. But Copeland may be the first time a United States appellate court has held that persistent misgendering — referring to someone with a pronoun different than the one they identify with — may constitute harassment.
Copeland’s Lawsuit
Tyler Copeland worked for the Georgia Department of Corrections (GDOC) as a sergeant at Rogers State Prison when he came out at work as transgender. Copeland’s transition at work was anything but smooth. He alleged that human resources was not supportive, requiring him to provide a birth certificate reflecting his gender change, questioning whether he had “had the surgery” or planned to have it, allegedly laughing about the situation, and advising him not to use the men’s restroom. Finally, HR held a meeting with Copeland and all staff to tell them of Copeland’s transgender status and instruct them to refer to him with male pronouns or refer to him as Sgt. Copeland. According to Copeland, after that meeting he encountered taunts, threats, and misgendering by supervisors and subordinates alike. Despite reporting the harassment to supervisors, he says the conduct continued.
Copeland filed an EEOC charge and later sued GDOC in federal court, raising three claims under Title VII: hostile work environment, failure to promote, and retaliation. The trial court granted summary judgment to GDOC on all three claims, but the Eleventh Circuit reversed the summary judgment on the hostile work environment count (affirming summary judgment on the other two counts). The appeals court found that the district court erred when it found that Copeland had not presented sufficient evidence that the alleged harassment was sufficiently severe or pervasive to alter the terms and conditions of employment.
As you know, a hostile work environment claim has subjective and objective components. The trial court recognized that Copeland established the requisite subjective component: i.e., that he perceived the conduct as abusive. Copeland testified that coworker threats made him fear for his life and that certain coworkers’ repeated misgendering and insubordination had put his safety at exceptional risk at work. The trial court determined that Copeland could not establish the objective component – that a reasonable person would find that the environment was hostile or abusive. The Eleventh Circuit disagreed.
Writing for the court, Judge Jill Pryor recounted how Tyler Copeland, a transgender man — who was assigned the sex of female at birth, but consistently and persistently identifies as a man — came out as transgender at work and endured a year of incessant and humiliating taunting, threats, and insubordination by supervisors and subordinates. The court found that Copeland had demonstrated that the conduct was “severe and pervasive” under all of the four factors that normally guide the analysis.
What Made This Environment Objectively Hostile?
The court considered four factors to determine whether the alleged harassment was subjectively severe and pervasive: (1) its frequency, (2) its severity, (3) whether it was physically threatening or humiliating, and (4) whether it unreasonably interfered with job performance. In considering these factors, contrary to the district court (which had found Copeland faced “simple rudeness and discourtesy”), the Eleventh Circuit found that Copeland’s testimony was replete with instances of harassment that were “intentionally insulting and degrading.” Keep in mind that at this stage of the proceedings, the court considers the facts in the light most favorable to Copeland (so we do not know what the coworkers and supervisors will say).
1. Frequency: Daily, intentional misgendering may be frequent harassment.
Copeland testified that his supervisors and subordinates publicly misgendered him — by calling him “ma’am” over the prison’s radio for the entire staff to hear — three to four times a day for at least a year. The court found that this was sufficient evidence to find that the harassment was frequent.
2. Severity: Repeated conduct done over an employee’s objections, by an employee’s supervisors, or in the correctional context can constitute severe harassment.
Copeland testified that the harassment continued over his objections; he said he talked with coworkers directly, asking them to stop embarrassing him over the radio. He met with HR and his shift supervisor, even the warden, but the behavior continued. The court noted that Copeland said his supervisors participated in the behavior: His lieutenant repeatedly called him “baby girl” and another supervisor repeatedly misgendered Copeland on the radio while employees laughed (and she laughed when Copeland asked her to stop). Finally, context mattered to the court. Copeland worked in a correctional facility where singling out an employee, like Copeland, could signal that he did not have coworkers’ support (which could put him at risk).
3. Physically Threatening or Humiliating: Physical threats done in a “joking and friendly manner” are still threats.
While most of Copeland’s testimony recounted verbal conduct, he also testified about one incident where a female coworker confronted him, saying “we can fight,” while blocking Copeland’s path. The coworker followed Copeland outside while carrying a gun, circled him in an armed vehicle, then parked behind him. The same coworker pushed Copeland (which was corroborated by surveillance video). While an internal investigation concluded the coworker was acting in a “joking and friendly manner,” the court concluded that this conduct supported Copeland’s position that the harassment was physically threatening or humiliating. Copeland also offered evidence that the harassment was humiliating because it occurred in the presence of coworkers and because the comments discussed Copeland’s genitalia on numerous occasions — including HR inquiring if he had undergone genital surgery and a coworker joking that Copeland had a “dildo” in “her” pants.
4. Interference with Job Performance: Insubordination negatively impacted Copeland’s Job Performance.
Copeland testified that the same employees that misgendered and threatened him prevented him from carrying out his duties. One coworker refused to give Copeland the keys he needed to transfer an inmate out of the prison, and another refused to serve disciplinary papers on inmates as Copeland had ordered. Despite reporting these incidents, Copeland said his supervisors took no action and intimated that he just needed to give his colleagues time to adjust.
Takeaways
The Copeland decision should not come as a complete surprise given EEOC guidance that intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to a hostile work environment. Take this as a wake-up call: Employers need to evaluate current policies, implement training, and consider new policies that address gender transitions, including preferred pronouns. Make sure your HR staff is ready to handle these situations professionally by only requesting needed documents and not asking questions they do not need answers to (such as if the employee has had surgery). Also make sure supervisors and HR staff do not dismiss these kinds of allegations as no big deal — the EEOC and courts may think it creates a hostile work environment.
