Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

Calling a transgender employee by wrong pronoun?

An employee, when hired, had a male gender identity, and male gender expression. When the employee’s supervisor was reviewing his employment paperwork a few weeks later, he noticed that his driver’s license listed his sex as female. When the supervisor asked the employee to explain, the employee responded that he is a transgender man. The following week the employer’s vice president gave the employee a copy of the dress code for female employees, stating that the employee was not complying with the dress code provisions specifically governing how female employees must dress. The employee told the vice president hat he lives and identifies as male. The vice president stated that the employer nonetheless would require him to dress as female and presented the employee with a written statement and told the employee that he had to sign the statement if he wanted to continue working for the employer. The statement said:

"I understand that my preference to act and dress as male, despite having been born a female, is not something that will be in compliance with [the employer’s] personnel policies. I have been advised as to the proper dress for females and also have been provided a copy of the female dress code. I also understand that when meetings occur that require out of town travel and an overnight room is required, I will be … assigned to a room with a female."

     The employee refused to sign the agreement and was fired. The employee filed an EEOC charge of discrimination, alleging that the employee’s termination constituted unlawful discrimination on the basis of his sex, change of sex, sex stereotypes, and gender identity, in violation of Title VII. The EEOC concluded that the evidence supported a reasonable cause finding that the employee was subjected to discrimination based on sex, transgender male, in that the employee was required by the employer’s company policy to be treated as belonging to a gender with which the employee did not identify, despite the employee placing the employer on notice of his desire to be treated as a member of the gender with which he identifies. The EEOC found that he employer had failed to meet its burden to show that the policies in question constituted a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of its particular business enterprise.

     The employee then filed a federal lawsuit (E.D. La) alleging sex discrimination in violation of Title VII. The EEOC joined the lawsuit, saying that addressing discrimination based on gender identity is a “priority issue” for the EEOC. The lawsuit was placed on hold while the matter went to arbitration because when the employee was hired he signed an agreement to arbitrate claims against the company.

     In December 2016 the arbitrator issued an award for the employee finding the employer’s insistence that the employee match the stereotypes associated with a female is a violation of Title VII. The Arbitrator awarded economic damages for more than a year of pay and also awarded emotional distress damages.

     This case demonstrates to employers the changing landscape concerning transgender employees.

     If you are an employer with questions about transgender discrimination issues in Florida, the Law Office of David Miklas welcomes your emails and you may also call us at 1-772-465-5111.

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Can an employer force a transgender employee to dress as a certain gender?