Use of Employee's Preferred Name, Pronoun, or Title
Title VII and the New York Human Rights Law provide some protection against sex or gender-based discrimination, but in most cases, transgender employees have greater recourse to remedies under the New York City Human Rights Law. Employers are required to use an employee's preferred name, pronoun, and title, regardless of what their identification papers indicate about their sex, their sex assigned at birth, their anatomy, their gender expression, their perceived gender, or their medical history. Many transgender and gender nonconforming people choose to use a different name than what they were provided at birth. Moreover, they may use gender pronouns that include he/she/they/ze. At Phillips & Associates, our New York City transgender discrimination attorneys may be able to assist individuals in bringing discrimination or harassment lawsuits based on an employer's failure to use an employee's preferred name, pronoun, or title.Use of Employee's Preferred Name, Pronoun, or Title
Under federal and state laws, employees have the right to be free from discrimination and harassment based on their gender identity and gender expression. In many cases, however, gender expression is conducted through a name, pronoun, or title. Title VII does not include an explicit prohibition against gender identity discrimination, although the Equal Employment Opportunity Commission (EEOC) has stated that it is implicitly covered by the general prohibition against sex discrimination.
All workers in New York City who are working for employers covered by the New York City Human Rights Law are entitled to use their preferred name, regardless of whether they have gone to court to have their name changed or whether they have transitioned. There are some restricted situations in which the law provides otherwise, such as when verifying employment eligibility with the federal government or conducting a background check for positions that require it. Asking someone which name and pronoun they would prefer to be called is not a violation of New York City law.Identifying a Violation of the New York City Human Rights Law
You may hold your employer liable under the New York City Human Rights Law if they intentionally or repeatedly refuse to honor your requests related to your preferred name, pronoun, or title. For example, if you are a transgender woman, and you are repeatedly called “him” or “Mr.,” after you have stated that your name is Alice, and you prefer "she" and "Ms.," this likely is discrimination or harassment. Similarly, your employer's refusal to use "Alice" because your appearance is aligned with stereotypes of masculinity may be discriminatory or harassing. This conduct may not be considered harassing under Title VII, which has a higher threshold for what is considered harassment.
Sometimes employers will say that they will only call you by your preferred name if you get a name change that is court ordered, provide identification with a particular name, or undergo sex reassignment surgery. However, your employer is not allowed to condition your gender expression on meeting its requirements. All employees are entitled to self-identify their names and genders in New York City.
Discrimination and harassment are actionable under city law. Harassment in the context of a failure to use a preferred name is often considered hostile work environment harassment. This is harassment that is so severe or so pervasive that a reasonable person would find it offensive.Fight Back Against Retaliation
Many people feel awkward standing up for themselves in the context of rights granted to them under the New York City Human Rights Law, state law, or federal law. It is common to fear that you will be punished for complaining or asking for better treatment. Most anti-discrimination laws, including the New York City Human Rights Law, contain a provision prohibiting retaliation. Retaliation is any adverse action taken against you for engaging in a protected activity. Such a protected activity might include lodging a complaint with HR against your supervisor for failing to use your preferred name and pronoun on a regular basis.
If you are terminated, passed over for a promotion, denied benefits, or otherwise adversely treated soon after filing a charge or complaint related to your gender identity or expression, you may have a basis to file a complaint of retaliation. As long as you have a good-faith belief that you have suffered from harassment or discrimination, you are protected from your employer's retaliation. In some cases, courts have found no harassment but still found that there was retaliation for which damages could be recovered.Discuss Your Transgender Discrimination Case with a New York City Lawyer
It may seem like a minor issue to a cisgender individual, but for a transgender and gender nonconforming employee, the use of an employee's preferred name, pronoun, or title may have a significant impact on an employee's wellbeing and productivity. At Phillips & Associates, our experienced New York City attorneys can advise clients on filing internal complaints regarding gender expression discrimination, and we can bring a charge or lawsuit afterward if appropriate. Contact us online or call us at (212) 248-7431 for a free consultation with a gender identity discrimination lawyer. We fight employment discrimination in the Bronx, Queens, Brooklyn, Manhattan, and Staten Island, as well as in Westchester, Nassau, and Suffolk Counties and in New Jersey.
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