Transgender Employee Advances Title VII Claims Based on Sex, Gender Identity, and Gender Expression

By Lindsay H. S. Hesketh

A former employee who transitioned to female during her employment brought claims of hostile work environment, discriminatory termination, and retaliation under Title VII. The complaint alleged multiple instances of coworkers and third parties refusing to call her by her preferred pronouns and female name (purposefully misgendering her), and expressing disapproval of her wardrobe choices at work. The plaintiff allegedly complained to her supervisors and was discharged several months later. Defendants moved to dismiss the complaint for failure to state a claim.  

The U.S. District Court for the District of Maryland dismissed the plaintiff’s claim of hostile work environment, with permission for the plaintiff to restate that claim with more specific information about who misgendered her and when. The plaintiff has a diary that documents 35 specific instances of discriminatory treatment, but she failed to spell out the details in her complaint. The court allowed the plaintiff’s claims of discriminatory termination and retaliation to proceed.

Whether Title VII prohibits discrimination on the basis of transgender identity is an issue pending before the Supreme Court of the United States, and here, the District Court left room for the Supreme Court’s decision to guide the case as it proceeds. But, in practice, discrimination on the basis of transgender identity may already be barred by state and local laws. Employers should take measures to ensure all employees are treated respectfully by their supervisors, coworkers, and third parties. Train your employees to avoid improper sex stereotyping, misgendering, and similar conduct that could give rise to a discrimination claim.

Milo v. Cybercore Technologies, LLC, Case No. SAG-18-3145 (D.C. Md. Jan. 13, 2020).