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Workplace Discrimination: Don't Call a Transgender Employee "It"

By now, most people know enough about the law to know that you can’t discriminate against a worker because of characteristics like race, sex, age and disability. Those are pretty obvious and those laws have been in place for as long as most of us can remember. However, society and laws are constantly evolving, and there are always new issues employers need to watch for, both to ensure all of their employees are protected from discrimination and to make sure they are protecting themselves from lawsuits.

Gender identity is one of these issues. Caitlyn Jenner and Laverne Cox from Orange is the New Black have made many of us pay more attention to the transgender movement, but many of us have yet to face questions regarding the protection of transgender employees in our workplaces.

Earlier this week, Victor Alexander King sued Whole Foods in a New York federal court claiming he was discriminated against and harassed because he is transgender. King, who was born a woman but had transitioned to male before being employed by Whole Foods, claims he was harassed on a daily basis. He claims he repeatedly had to ask coworkers not to refer to him as “she,” or even worse, “it,” as if he were not a person at all. He claims he had coworkers tell him they would not refer to him as a man or treat him as a man.  He further claims employees laughed at him and made snide comments about his change, and that management would not address his complaints.

As the complaint was only recently filed, there has been no judgment reached, and it is unclear how King’s claims will fare. However, regardless of the outcome, Whole Foods and other employers run the risk of legal liability, attorneys’ fees and bad publicity associated with claims such as King’s.

Even if your company does not currently have any known transgender employees, and even if your state and city do not explicitly ban discrimination against employees based on gender identity (and if they don’t yet do so, they will), you can create a more harmonious workplace and protect your company against the cost and bad publicity of a discrimination lawsuit by proactively training employees on sensitivity, fairness and acceptance. Employees need to know that it is not okay to tease their coworkers because of their gender identity any more than it is because of their disability or age and that calling someone “it” can be as dehumanizing as using a racial slur. Contact your employment lawyer today if you need help reviewing your discrimination and harassment policies or training your employees on respect and sensitivity to their coworkers.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume VI, Number 97


About this Author

Douglas Oldham Labor and Employment Law Attorney Barnes Thornburg Law Firm
Of Counsel

Douglas M. Oldham is of counsel in the Columbus and Chicago offices of Barnes & Thornburg LLP and a member of the firm’s Labor and Employment Law Department.

Mr. Oldham has represented employers in employment discrimination litigation since entering the firm in 2004. He has accumulated significant labor and employment litigation experience throughout that time, including:

  • briefing numerous successful motions for summary judgment and motions to dismiss, as well as copious nondispositive motions, in federal...