A nursing home in Vancouver, Washington, has agreed to provide monetary and injunctive relief to a former supervisor following an investigation by the US Equal Employment Opportunity Commission (EEOC), the agency announced on May 23, 2024.
In a charge filed with the EEOC, the former supervisor alleged that after disclosing their gender identity and pronouns to their employer, managers and staff persisted in repeatedly and intentionally referring to them using pronouns inconsistent with their gender identity. The EEOC’s investigation found evidence confirming that the alleged sex-based harassment went on for more than a six-month period and that, despite receiving complaints about and objections to the harassment, the facility failed to act appropriately. Such alleged conduct is a violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment based on sex, including gender identity.
Following the investigation, the parties engaged in the pre-litigation conciliation process which resulted in a settlement that required the nursing home to pay monetary damages, revise its non-discrimination policies, conduct employee training, and provide additional training to managers and staff involved in the investigation of employee complaints of discrimination and harassment.
“Accidental slip-ups may happen, but repeatedly and intentionally misgendering someone is a clear form of sex-based harassment,” said Elizabeth M. Cannon, director of the EEOC’s Seattle Field Office. “Employers have a duty to intervene when employees—including transgender, non-binary, and other gender non-conforming individuals—are treated maliciously in the workplace because of their gender identity. Training can be a powerful tool for informing employees of their rights and proactively preventing harassment.”
Compliance Perspective
Issue
Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity. Accordingly, sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
Discussion Points
- Review your policies and procedures on preventing harassment, including sex-based harassment. Update your policies as needed.
- Train staff on what is considered harassment and their role in promptly reporting all types of harassment to a supervisor, the compliance and ethics officer, or through the facility’s hotline. Train supervisors and the compliance and ethics officer on their role when harassment has been reported to them by an employee. Stress the importance of nonretaliation. Document that these trainings occurred and file the signed documents in each employee’s education file.
- Periodically audit by anonymously polling staff to determine if they are being harassed or experiencing discrimination and ask if they feel free to report such instances without fear of retaliation or retribution.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
