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Can A Hostile Work Environment Be Based On Transgender Harassment?

Published By | Feb 21, 2022 | Employment Discrimination, Employment Law, Gender Discrimination, LGBTQ Discrimination, Sexual Harassment, Wrongful Termination |

LGBTQ+ Discrimination Attorneys Best Answers: What can I do if my supervisor will not use my preferred pronouns? What should I do if I was denied a promotion because I’m transgendered? Does sexual harassment against a transgender employee need to be proved under a different standard?

Let’s start by running down the qualifications of the employee who applied for the employee’s direct boss’s position upon his retirement:

  • The employee previously served 10 years in the United States Navy earning the position of Engineering Officer of the Watch, which is the highest engineering position in possible on a Navy vessel.
  • The employee held every position at the employer’s powerplant during a 25-year tenure.
  • The employee helped write the Standard Operational Procedures for all equipment within employer’s powerplant.
  • The former top boss presented the employee with an award for “going far beyond her job expectations while carrying out the spirit and mission of Vanderbilt in all they do.”

Sounds like the employee is qualified, right? At least worth a look. Of course, because this is an employment discrimination blog, you already know that there is problem.

Upon attempting to interview, the employee was told she had no change of getting the job. Really, no chance?

Let’s go over some of the reasons that the employer, Vanderbilt University, would have outright blocked this employee Olivia Ruth Hill. Hill was not always Olivia. In late 2017, Hill was diagnosed with gender dysphoria. In February 2019, she started her medically necessary transition from male to female. As such, Hill was considered transgender.

As readers of our blog know, on June 15, 2020, the United States Supreme Court, in Bostock v. Clayton County, Georgia, issued a landmark decision holding that sexual orientation and sex identity were necessary part of the protections afforded under Title VII of the Civil Rights Act of 1964 for gender/sex. (See What does Bostock v. Clayton County mean to the LGBTQ Community?) Because the United States Supreme Court, in the opinion written by the Honorable Justice Neil Gorsuch, was interpreting the law as written in Title VII and not creating new law, the holding essentially established that LGBTQ+ discrimination was always unlawful under Title VII. This means that even though the conduct may have occurred before the Bostock holding, employers will still be liable for all discriminatory and harassing conduct regardless. And, boy, according to the lawsuit filed in the United States District Court for the Middle District of Tennessee, there was a lot of unlawful conduct!

Obviously, based on Bostock, employers can no more refuse to promote a transgendered employee as it could refuse to promote a woman employee, a 60-year-old worker, or an employee with a different national origin. (See My Company Doesn’t Allow Women To Be Promoted!; My Employer Will Not Promote Me Because Of My Age. I Need The Top Employment Lawyer In Ohio!; I Wasn’t Promoted Because I’m From Another Country. Best National Origin Discrimination Lawyer Advice!).

Unfortunately, the reports of unlawful conduct do not stop there.

Pursuant to the lawsuit, Hill’s direct supervisor, Tim Cook, immediately began to describe Hill as a “freak,” “it” and “weirdo” to other employees after learning of Hill’s transition. Following Hill’s return to work from gender-affirming surgery in 2019, the harassment became more frequent and intensified. For example, a salesman pulled Hill close to him and looked down her blouse at her breasts before telling her, “You have pretty eyes.” In another instance, a colleague asked if Hill could be considered a virgin, and whether he could be the first to “f*ck her” and “use  her new vagina.” Other employees and managers simply ignored her like she did not exist; or they would stop talking when she came into a room. Sexual harassment is sexual harassment regardless if it is directed at a man, woman, or a transgendered worker. (See What Should I Do If I’m Being Harassed At Work?; Recognizing Sexual Harassment In The Workplace).

Certainly, this conduct and hostile work environment would not have been tolerated had this been done to a non-transgendered woman. Can you imagine anyone tolerating that behavior as acceptable to any woman who is not transgendered? Certainly not.

As such, the University would likely be liable for the transgender and sexually hostile work environment. (See What Is A Hostile Work Environment?; Are you experiencing a hostile work environment?; What Is A Sexually Hostile Work Environment?; Gender Discrimination: For Hostile Work Environment Claims Under Title VII “Sex” Means Gender, Not An Act). Moreover, because the employer did not apply the rules equally to enforce its sexual harassment policies, it should also be liable for the disparate treatment regarding how it protected women from sexual and other forms of harassment. (See What Is Disparate Treatment?; Any Disparate Treatment May Give Rise To A Very Good Claim).

Management was also told by her subordinates that this “freak is not my boss, and I will not listen to it.” Another subordinate rejected instructions by saying, “f*ck off freak,” and walking away from Hill. Management allowed the insubordination. Can you imagine a company allowing a subordinate to excuse his refusal to perform his job as directed because the instruction came from a Black, Hispanic, Jewish or female boss? Being transgender and sexual orientation status is entitled to the exact same protections under Title VII as race/color, religion, gender/sex national origin, and age.

In my opinion, what happens next is even worse. Hill reported the unlawful discrimination and harassment to her direct supervisor, Tim Cook. This is a protected activity under Title VII. Cook’s first response was that he was busy but would try to get around to it. Again, can you imagine Human Resources (HR) telling that to any other woman who has being sexually harassed in the workplace? After Cook failed to address it, Hill reported the activity again, at which time, Cook admitted not only that he had failed to address the unlawful conduct, but that he would not because he “didn’t know how to.” Um, how about just telling the offenders to knock it off, give them a verbal warning, put a written warning in their file, hand out a suspension or two? Certainly, Cook had discipled employees before. This is further evidence of disparate treatment based on Hill’s transgendered status.

When the problems continued, Hill went up the ladder and complained to Mitch Lampley, director of Engineering and Technical Support for Plant Operations, and Mark  Petty, assistant vice chancellor for plant operations. After meeting with them, Petty texted Hill at home that evening to set a meeting for the next day. At that meeting, Petty told Hill to “leave her emotions at home and just do her job.” Wow. Again, it is hard to imagine anyone thinking that this would be acceptable to tell any woman this in response to reports of ongoing sexual harassment and hostile work environment. Essentially, Petty told her to shut up and take it.

To make it worse, Petty repeatedly refused to use Hill’s new legally changed name and insisted on using male pronouns. Petty called Hill “sir” in front of coworkers and contractors and once ended a meeting by smiling directly at Hill while saying “thanks, gentlemen.” Since this type of horrible conduct would make it less likely for a Hill or other transgendered employees to complain or oppose such conduct, this likely would be held to violate Title VII’s anti-retaliation provisions. (See How Do I Prove Illegal Retaliation By My Job Under Title VII?)

So, Hill then filed a complaint with Vanderbilt’s EEOO department, who responded by putting Hill on leave for two years! After two years, the Vanderbilt EEOO department could not get any to admit that they had participated or observed such conduct and did nothing, which resulted in them closing the investigation for lack of corroboration. Geez, so the only thing it takes to avoid accountability in a small department where everyone is participating in the discrimination and harassment is to have those same people simply stonewall?

Without allowing her to return to work, Vanderbilt denied her the promotion without telling her why, reclassified her job to cut her pay by $40,000, and then reassigned her to report directly to Lampley, the person she reported for LGBTQ+ discrimination and harassment. The University chose not to allow Hill to return to work for her own safety. However, this creates a logic conundrum for Vanderbilt – if there was sufficient evidence to be concerned for Hill’s safety, then there was sufficient evidence to corroborate her discrimination complaint. If there was no evidence to corroborate her discrimination complaint, then let her come back to work safely. This looks like a blatant lie to me, which is what employment lawyers call pretext (See Employment Discrimination Question: What Is Pretext?). Moreover, it looks like the employer is trying to push Hill out of her job to make everyone else feel better about not having to work with a transgendered woman who complains about discrimination, which our employment lawyers think is best called a constructive discharge and give rise to a claim for wrongful termination. (See Employment Law: What Does “Constructive Discharge” Mean?).

After the case got into the hands of its attorneys, Vanderbilt probably learned that it had some serious problems and settled with Hill.

If you are Googling  “I need a lawyer because I have was wrongfully fired or terminated today;” or “I have been discriminated against because I am …” gay, a lesbian, bisexual, transgendered, queer; or even think that you might need an employment law lawyer that works with LGBTQ employees, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our Cleveland, Cincinnati, Columbus, Toledo, Akron, Youngstown and Detroit attorneys now to get help or advice.  Your employment rights are constantly changing and the best way to find out if you can sue your boss, manager, supervisor or employer for discrimination, harassment, or wrongful termination is to call Spitz, The Employee’s Law Firm and talk to its attorneys, who are experienced and dedicated to protecting the rights of employees just like you.

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