A FELTG reader sent us the following submission.
A discussion recently came up in our agency about deadnaming and whether that could be considered unlawful harassment. Can you weigh in?
Thanks for the question. Let’s start with a definition. A deadname, according to Merriam Webster, is “the name a transgender person was given at birth and no longer uses upon transitioning.” So, deadnaming is referring to a person by their former name.
Depending on the circumstances, referring to a coworker or employee by their deadname could constitute unlawful harassment. The details matter. EEOC case law makes clear that supervisors and coworkers should use the name and gender pronouns that correspond to the employee’s gender identity, in employee records and in communications with and about the employee. See Jameson v. USPS, EEOC App. No. 0120130992 (May 21, 2013); Eric S. v. VA, EEOC Appeal No. 0120133123 (Apr. 16, 2014).
There are cases, however, that find name or gender misuse might not meet the legal standard for unlawful harassment. Rare or unintentional misuse, while unwelcome, might not rise to the level of severe or pervasive. See Lusardi v. Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015).
A new EEOC case specifically addressed an agency’s deadnaming of a complainant. The agency’s “repeated use of the employee’s wrong pronouns and wrong name during the processing of two EEO complaints would be especially harmful and, therefore, severe to a reasonable person in that employee’s position. We therefore find that the harassment was sufficiently severe to constitute a hostile work environment.” Roxanna B. v. Yellen, EEOC App. No. 2020004142 (Jan. 10, 2024).
We know these topics can be challenging and we’ll discuss them in detail on Feb. 20 during the two-hour live virtual training Navigating Complex Hostile Work Environment Harassment Cases. [email protected]
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