Discrimination against LGBTQ+ people is far too common, especially these days. It seems like you cannot turn on the news without seeing a story about discrimination against people based on their sexual orientation or gender identity. If it is not a story about LGBTQ+ discrimination, it is an article about legislators introducing bills to make discrimination easier. A lot of this discrimination specifically targets transgender people in an attempt to alienate and intimidate them.
Well, this week we actually have some good news to report! Recently, the National Labor Relations Board (“NLRB”) publicly released an Advice Memorandum in which the NLRB concluded that an Ohio employer could not fire a trans woman for putting her pronouns in her email signature after she had been repeatedly misgendered by managers and coworkers. The NLRB’s Advice Memorandum can be found here (the agency redacted names and personally identifying information).
What is an Advice Memorandum, and what does this mean?
The NLRB is divided into 32 regional offices across the country. Each office has its own director and staff, and most day-to-day decisions at the NLRB are made at the regional level. However, if a regional director has a new or difficult legal question, the regional director can ask the NLRB’s Division of Advice in Washington, D.C. The Division of Advice reviews the regional director’s question and issues an Advice Memorandum to give advice on how to handle the issue.
The Advice Memorandum serves as guidance on how the NLRB will handle an issue in the future. Although it is not legally binding in the same way a court decision is, regional offices use Advice Memoranda to inform what they will do in cases going forward.
What happened in this case?
A trans woman – a client of Spitz, The Employee’s Law Firm – worked for a drug store in Columbus. Managers and coworkers repeatedly misgendered her, despite her repeated requests that they refer to her by the correct pronouns. She complained multiple times to managers and to coworkers about the discrimination she was facing due to her gender identity. In her email signature, she included a note that “she/her” pronouns are the correct way to refer to her gender.
Under the National Labor Relations Act, it is illegal for an employer to retaliate against qualifying employees for engaging in “concerted” activities for “mutual aid or protection.” This means that employers cannot fire or otherwise punish qualifying employees for joining together to discuss working conditions or pay, or for organizing actions together to protest or resist problems in the workplace. This can include refusing orders or even going on strike – regardless of whether the employee is a member of a union.
Well, when our client put her pronouns in her email signature, the employer demanded that she needed to take them out. She refused, saying that she needed to see a policy in writing before she would remove her pronouns. She communicated with coworkers and asked them if they thought she would be fired for it. The coworkers expressed their support for her refusal to remove her pronouns. The employer terminated her employment, saying that she was “insubordinate” for refusing to remove her pronouns.
Our employment discrimination lawyers filed the case in both the NLRB and the Equal Employment Opportunity Commission (“EEOC”). (Best Read: Why Having Skilled Employment Attorneys Is Critical; Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge). The NLRB’s Division of Advice issued the Advice Memorandum, taking the position that discussing anti-LGBTQ+ discrimination with coworkers is a protected activity under the National Labor Relations Act. But the Advice Memorandum went even further: the NLRB took the position that an employer cannot prohibit adding pronouns to an email signature when it “relate[s] to her expressed concerns to the Employer and other employees about gender identity discrimination at work.”
What should I do if my boss is discriminating against me for being transgender?
Best Employment Lawyer Answer: This issue is complicated, and the law is constantly changing. You should not try to handle it on your own, and you should not hire a bad lawyer. It is very important to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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