Political correctness in the workplace has become increasingly complex. Employers who have referred to transitioning employees with the wrong pronoun have found themselves in the crosshairs of the EEOC. But what about those employees who do not identify with either gender and prefer a gender neutral pronoun? Say, what?
A gender neutral pronoun does not associate a gender with the individual being discussed. In languages like English, where such pronouns don’t exist, people have attempted to create them. For example, instead of using the traditional phrasing “he laughed” or “we called him” one might say “ne laughed” or “we called nem.” However, as some LGBT bloggers have pointed out, supporters of invented pronouns have not unified around the terms to be used, leaving many employers (and grammarians) stumped.
Whether the failure to use invented pronouns will result in liability for employers remains to be seen. The LGBT community had significant support from the EEOC during the Obama Administration. Indeed, the EEOC’s Strategic Enforcement Plan for 2017-2020, adopted in October 2016, identified a continuing focus on ensuring anti-discrimination protections for LGBT people. In the last few years, those enforcement efforts have included the EEOC reversing its longstanding position to now hold that sexual orientation is protected under Title VII. Cases involving private sector employers are now working their way through the courts on that same issue.
The EEOC has targeted gender identity and expression, including enforcing the use of the correct pronouns to address transgender employees, as well as promoting the use of gender neutral pronouns, especially upon an employee’s request. In one case ruling against a federal sector employer, the EEOC said, “with regard to Complainant’s allegation that she was subjected to harassment when her supervisor repeatedly referred to her as ‘he,’ we note that supervisors and coworkers should use the name and pronoun of the gender that the employee identifies with in employee records and in communications with and about the employee. Intentional misuse of the employee’s new name and pronoun may cause harm to the employee, and may constitute sex based discrimination and/or harassment.” Jameson v. Donahoe, EEOC DOC 0120130992 (May 21, 2013) (emphasis supplied).
Under the Trump administration, some of the EEOC’s positions may shift substantially. For example, a leaked draft of an executive order circulated among federal staff that would have rolled back LGBT protections and expanded religious exemptions from discrimination laws received a lot of media coverage last week. The draft order protected any organization that “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.” The draft order protected “any act or refusal to act that is motivated by a sincerely held religious belief, whether or not the act is required or compelled by, or central to, a system of religious belief.” Commentators indicated that the order would have far-reaching impact, such as allowing federal agency employees to refuse on religious grounds to process Social Security Applications or respond to questions for those whose benefits depend on same sex marriages, or to allow federally funded child-welfare organizations, including those offering adoption, foster, or family support services, to deny anyone these services due to a conflict with religious beliefs.
While the draft executive order appears to have been scuttled for the moment, changes in enforcement priorities are likely to come. In addition, based on the prior opinions written by Judge Neil Gorsuch, newly nominated to the U.S. Supreme Court, conservatives eager to roll back the EEOC’s expanded protections will likely have an ally. Gorsuch authored a concurring opinion in the appellate court decision in the Hobby Lobby case, which eventually reached the U.S. Supreme Court, where he concluded that corporations—and their individual owners—could refuse on religious grounds an Affordable Care Act mandate to provide insurance coverage for the payment of contraceptives.
In the meantime, until further clarity is provided by the EEOC and courts, the safest approach for employers is to simply refer to employees in the manner they request.