EEOC Sues Employer Over Gender Identity Harassment and Constructive Discharge

Yesterday, the U.S. Equal Employment Opportunity Commission filed a lawsuit against an employer for allegedly permitting, enabling, and participating in years-long acts of gender identity-based discrimination and harassment, which ultimately resulted in an employee’s constructive discharge (the employee felt they had no choice but to quit to avoid being further targeted).

In the Bostock decision in June 2020, the Supreme Court ruled that gender identity is a protected class under federal law. All employers with at least 15 employees must therefore ensure that their employees are not harassed or discriminated against on the basis of gender identity. Many states and localities already recognized gender identity as a protected class prior to the Bostock decision.

According to the complaint in the EEOC’s latest suit, an employee who began transitioning in 2018 was subjected to both sexual harassment and gender identity-based discrimination and harassment, often in the presence of multiple coworkers. The alleged wrongful behavior included disparaging remarks about the employee’s gender identity, repeated instances of misgendering, and aggressive verbal and physical sexual harassment.

Per the Complaint, the employer did not have an effective mechanism for reporting harassment; the alleged wrongful behavior was nevertheless reported at least once, and no action was taken. Under such conditions, the targeted employee was forced to quit, according to the EEOC.

News of this suit is a reminder to continuously educate employees about the different types of harassment that can occur in a workplace, including gender identity-based harassment, and what that could look like, including, for example, making jokes, using stereotypes, or intentionally misgendering. Additionally, employers should review current reporting policies and procedures, ensure that they are properly and consistently implemented, that employees are aware of them, and that employees do not fear retaliation if they want to report alleged harassment or discrimination.