Every year, people across the country gain rights that some never dreamed they’d have. Women fought for and gained the right to work for the same wages as men. Culturally, groups have fought for the right to wear traditional garb, such as hijabs, at work. It’s amazing each time a new law passes.

While workplace discrimination covers many areas, one of the newer protections concerns deadnaming and misgendering. The laws are based on equality, fair treatment for all, and respect. Yet, some people don’t understand the laws or even what these legal statutes cover.

Whether you’re an employee who believes your rights were violated or an employer unsure how to prevent deadnaming and misgendering from becoming a problem in your workplace, we provide clarification and offer insights into next steps.

Understanding Deadnaming and Misgendering

Before we go into the laws that protect California’s workers and job applicants, it helps to understand exactly what deadnaming and misgendering entail. 

• Deadnaming: Referring to a nonbinary or transgender person by their birth name instead of the name they chose. Using a well-known celebrity example, Kaitlyn Jenner’s birth name is Bruce, but she chose the name Kaitlyn, and it’s what people should use, or it’s deadnaming.
• Migendering: Refusing to use the pronouns that an individual requests. Going back to our earlier example, Kaitlyn’s pronouns are she/her, and anyone refusing to use them is misgendering her.

No one is perfect, and mistakes happen. Using the wrong name or pronoun can be unintentional. However, if someone simply refuses to use the preferred name or pronoun and continues to deadname or misgender, it’s intentional and a violation of the law.

California’s Legal Framework: The Fair Employment and Housing Act (FEHA)

Under federal law, there have been many changes regarding deadnaming and misgendering. While there are no specific laws, interpretations of Title VII of the Civil Rights Act and Title IX protect against discrimination in the workplace and schools. As the current administration doesn’t always support LGBTQIA+ protections, it’s hard to say how EEOC complaints will go in a courtroom.

California is different. There are workplace protections in place that protect against deadnaming and misgendering. The FEHA prohibits discrimination and harassment based on gender expression and gender identity.

Gender identity protections are in place for California employers with at least five workers. A 2017 law added gender expression protections. Employees have the right to ask their coworkers, management, and others in the workplace to use their requested name and pronouns. 

Employers do not have the right to request medical documentation as proof of a gender or name change. Workers have the right to be treated with dignity and respect at work, and there are two types of legal violations.

• Discrimination: Proof that an employment action (demotion, termination, loss of promotion, etc.) occurred because of a person’s gender identity.
• Harassment: Allowing or creating a hostile work environment, which includes deadnaming and misgendering.

When Can Words or Actions Become a Legal Issue?

One of the questions we often hear is, “Can I sue a coworker who used the wrong pronoun once?” The answer is no. Laws require consistent harassment. A one-time mistake is not consistent harassment, because it’s unlikely the person meant to do it. Instead, the following criteria must be met.

Conduct creates a hostile, abusive work environment. (One or more acts have led to the worker feeling emotionally harmed, harassed, threatened, or violated due to the behavior.)

Conduct is intentional and persistent. (The worker has asked for corrected names or pronouns to be used, and the behavior didn’t change.)

The person who feels that they are in a hostile work environment can be a contractor, employee, intern, job applicant, or volunteer. The law applies to more than just hourly or salaried workers.

Other examples of misgendering or deadnaming:

• Asking a job applicant to state the gender assigned at birth.
• Demanding a sales employee to dress in attire that represents the gender they were assigned at birth.
• Forcing a transgender worker to use the bathroom for the gender assigned at birth.
• Refusing to provide medical insurance coverage for gender-affirming care.

Do Religious Beliefs Outweigh Nondiscrimination Laws?

In the case of Taking Offense vs. the State of California, the staff at a long-term care community felt their rights to their religious beliefs were being violated by nondiscrimination laws. Both free speech and religious beliefs are presented as valid reasons to ignore misgendering and deadnaming laws. 

Religious beliefs are a protected right, but they’re only protected when they do not cause “undue hardship” or violate the civil rights of another party. A person might object to the use of different pronouns or a name, but it doesn’t permit them to harass others.

California Employers: Implement These Actions

California employers are responsible for the actions of their workers. If management learns that a worker’s boss has been forcing a transgender man to use the women’s restroom and doesn’t take corrective action, the management is now also at fault.

To protect your company and ensure a safe, legally-compliant workplace, you have to do more than add anti-discrimination information in an employee handbook. You must:

• Ensure all company software and HR systems have the preferred name and gender in all employee records and communication systems. Only legal paperwork allows the use of a birth name, and only if there has been no legal name change. For example, booking flights requires that the passenger’s name match the name on the passport or REAL-ID-compliant driver’s license.
• Hold training sessions to ensure all workers, contractors, volunteers, etc. understand what constitutes deadnaming and misgendering and what happens if it’s reported.
• Make sure any vendors and contractors are aware of your policies and the consequences they face for failing to abide by them.
• Set company-wide rules on using correct names and pronouns and lay out what will happen if those rules are ignored.

Not Certain? Talk to Shegerian Conniff

Despite legal protections, deadnaming and misgendering remain controversial and misunderstood. You’re not sure where the laws regarding deadnaming and misgendering in the workplace truly stand.

You may have seen the cases in recent headlines. A student’s rights to privacy were violated when staff told parents about gender information. A senior housing community’s staff sued for their right to express their religious views and to avoid using residents’ preferred pronouns. Misgendering and deadnaming aren’t allowed in a workplace.

The attorneys at Shegerian Conniff help you understand your rights and work hard to ensure you’re not harassed or mistreated, whether you’re applying for a job or have worked for a company for years. You have rights, and we fight for them. Reach out to discuss your situation and determine the best path forward.