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Occasional Use of Wrong Pronouns Does Not Create Harassment Claim for Transgender Employee

    Client Alerts
  • 10/07/2019

Employees who transition genders may ask their employer and co-workers to begin addressing them with names and pronouns associated with that different gender. On September 17, a federal district court in Maryland (which, along with North Carolina and South Carolina is part of the Fourth Circuit Court of Appeals) dismissed a hostile work environment claim from a plaintiff who alleged that her co-workers’ failure to follow this request constituted gender harassment.

In Milo v. CyberCore Technologies, LLC, the plaintiff alleged that after she began her transition to female, her worksite managers held a staff meeting to explain the situation, and to request that employees begin using her new name and female pronouns. Despite these instructions, the plaintiff alleged that her co-workers failed to follow these instructions, and that her manager reprimanded her for wearing a skirt deemed too short for the workplace. She received a reprimand after a co-worker complained about the plaintiff’s confrontational behavior regarding the transition, and her assignment was later terminated. She sued, claiming gender discrimination and harassment under Title VII.

The district court dismissed these claims without prejudice. The court concluded that the single skirt incident and occasional use of incorrect pronouns did not rise to the level of a hostile work environment. The sporadic nature of these incidents, and the lack of any evidence of malicious intent on the part of her co-workers was insufficient to conclude that the plaintiff was exposed to intolerable working conditions.

The court previously denied a motion to stay the matter pending upcoming U.S. Supreme Court cases that address whether transgender status is protected under Title VII. The district court said that regardless of the outcome of these cases, the plaintiff had not alleged facts that could lead to recovery under Title VII.