Employers and employees in Washington D.C. are legally prohibited from referring to a transgender employee or coworker by the “wrong” pronouns or asking “personal questions” about their gender identity, according to the city’s Office of Human Rights (OHR).
OHR published a best practices guide for “valuing transgender applicants and employees” earlier this month with a list of “behaviors by supervisors or coworkers [that] may be considered unlawful harassment or a hostile work environment.”
One of the listed prohibited behaviors is: “Deliberately misusing a person’s preferred name or pronoun.”
“Asking personal questions about an individual’s body, gender identity or expression or transition” and “Posting offensive pictures or sending offensive communications” are also among the prohibited behaviors.
The guide states, “The District uses the probable cause standard in determining whether the above constitute harassment or a hostile work environment.”
Stephanie Franklin, OHR’s interim director of policy and communications, confirmed in an email that “Any workplace environment in DC—private businesses included— in which supervisors or co-workers deliberately misuse a person’s preferred name or pronoun may be considered unlawful harassment and/or a hostile work environment according to DC law.”
The “best practices” guide featues a chart on “gender and gender-neutral pronouns” that includes the gender-neutral pronoun “ze.” The chart includes example phrases using the gender-neutral pronoun, such as “Ze smiled,” “I met zir,” “Zir bike” and “Ze is zirself.”
“Regardless of the legal name and gender, employers should use an employee’s desired name and pronouns when communicating with them, and when talking about them to third parties,” the guide states.
The guide says, “The employer must ensure employees respect and use a transgender employee’s preferred names and pronouns, as repeated failure to do so can be considered harassment, and can cause severe distress to a transgender employee.”
“When an employee transitions in the workplace, the employee and their supervisor should discuss how the employee wants to transition the use of their name and pronouns,” the guide later states.
“This can include establishing a date the employee wants to start using their new name in the workplace, which allows the employer to complete the tasks necessary to ensure the preferred name is reflected on outward facing documents.”
The guide also make clear that employees should be allowed to use the bathroom in which they’re most comfortable .
“Transgender employees should at all times be able to use the restroom and other gender-segregated facilities (such as locker rooms) that they are most comfortable with,” the guide states.
According to OHR’s annual report, all discrimination complaints must go through a mandatory mediation process, with an OHR employee serving as the mediator, in an attempt to reach a settlement.
In the 2015 fiscal year, 307 discrimination complaints (including race, gender and disability complaints) ended in settlements via the mediation process. In 2015, the annual report states, “more than $3.69 million was awarded in settlements during successful mediations, a 74 percent increase over [the 2014 fiscal year].” That averages out to more than $12,000 per settlement.
Accused parties that don’t settle discrimination complaints through the mediation process typically end up paying more than those who agree to a settlement.
Discrimination complaints that aren’t settled via the mediation process are decided by the city’s Commission on Human Rights, which is described by the city as “a quasi-independent body.” The annual report states that the commission resolved 13 discrimination complaints by decision or order in the 2015 fiscal year. The commission assessed $594,000 in penalties, averaging more than $45,000 in penalties per decision.
Franklin listed a litany of legal penalties for businesses who allow workplace harassment and/or a hostile work environment, including: compensatory damages, attorney’s fees and civil penalties, among others.
According to non-profit organization Workplace Fairness, D.C.’s anti-discrimination protections are “broader than federal law because you may prove your case by showing that your employer acted wholly or partially for discriminatory reasons, and because you can bring an individual claim against your supervisor for ‘aiding and abetting’ discrimination.”
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