Question: I follow California’s requirements for posting notices and providing harassment prevention training to my employees, but do I need to address situations where customers and co-workers harass and employee because of the employee’s gender identity or expression?
Answer: Yes, an employer can be liable when customers, co-workers, or other third parties harass an employee because of their gender identity or expression. The U.S. Equal Employment Opportunity Commission (“EEOC”) recently settled a case filed against a bar and pizzeria in New York state. In its complaint, the EEOC alleged that the owner, staff, and customers of the bar/pizzeria harassed and discriminated against an employee who is a transgender man.
The complaint alleged that during the claimant’s employment, the owners, managers, and employees regularly harassed the employee by making numerous unwelcome comments to the employee, such as saying, “he was not a real man.” Co-workers and customers also misgendered the employee by intentionally using female, instead of male, pronouns daily. The employee made several complaints to his manager about the situation, yet nothing changed in the workplace.
In fall 2023, the EEOC released proposed guidance on addressing harassment in the workplace that also addresses harassment based on sexual orientation or gender identity. Some examples of improper harassment include: 1) epithets regarding sexual orientation or gender identity; 2) physical assault; 3) harassment because someone does not present themselves in a stereotypical manner; or 4) misgendering by intentionally and repeatedly using a name or pronoun inconsistent with the individual’s gender identity.
The EEOC’s proposed guidance also included a hypothetical of harassment where customers at a fast-food restaurant intentionally misgendered a cashier; but rather than address the harassment; the employer improperly reassigned the employee to duties away from customers.
While the EEOC has yet to finalize its guidance, that proposed guidance, along with the EEOC’s recently settled case, demonstrate the EEOC’s commitment to addressing and enforcing the laws prohibiting harassment and discrimination based on sexual orientation and gender identity in the workplace.
California law also prohibits harassment based on gender identity or expression. Last year, the California Civil Rights Department settled a case against an Oakland Shake Shack restaurant whose management, rather than correcting misgendering behavior in the workplace, told an employee that he would instead have to explain his gender to co-workers.
Employers should take steps to ensure that employees are properly addressed by the name and pronouns that correspond with their gender identity or gender expression. Employees need not take any significant steps, such as legally changing their name or birth certificate, in order to use a name and/or pronouns that correspond with their gender identity or gender expression in the workplace. While an employer may be legally obligated to use an employee’s legal name in specific employment records, absent a legal obligation, employers must respect an employee’s chosen name and pronouns.
These settlements serve as a reminder that despite increased awareness, employers must continue to take steps to eliminate improper treatment concerning an employee’s gender identity or expression. Employers should work to create a workplace environment that respects employees’ self-identification, avoids stereotypical assumptions, and ensures that co-workers, customers and third parties do so as well. If necessary, the employer or supervisor should step in to address situations where a customer is engaging in harassing behavior toward employees.