Persistent Misgendering Is Severe AND Pervasive Harassment, the Eleventh Circuit Holds
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June 24, 2024
The U.S. Court of Appeals for the Eleventh Circuit recently held that persistent misgendering is severe AND pervasive harassment in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Copeland v. Georgia Department of Corrections, No. 22-13073 (11th Cir., March 28, 2024).
Factual Background
Tyler Copeland is a transgender man. For three years, he was a sergeant at Rogers State Prison, part of the Georgia Department of Corrections (GDOC). Once he came out as transgender at work, Copeland was the subject of persistent harassment from supervisors, subordinates, and peers, despite his repeated complaints to his supervisors, prison management, and human resources. Coworkers called Copeland “baby girl.” They went out of their way to call him “ma’am” on prison-wide radio communications and in front of inmates. They jokingly speculated that he must have a dildo in his pants. They snickered at him. They pushed him. They disobeyed him. They undermined him.
Copeland’s working conditions also declined in other ways. Among other things, he faced insubordination from officers that he supervised. He was reassigned shifts more often than his coworkers. His supervisors refused to let him miss work to attend longstanding doctor’s appointments.
Copeland began to seek other work, both within GDOC and elsewhere. Each prospective employer rejected him without offering a reason. He knew that some of the potential employers contacted individuals at Rogers for character references, and he feared that their comments about his transgender status led to the job rejections.
After an investigator issued a report concluding that Copeland’s allegations of sexual harassment and assault were “not sustained,” even though video showed Copeland being pushed from behind, Copeland filed a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC closed its investigation and notified Copeland of his right to sue. Shortly thereafter, GDOC promoted Copeland to lieutenant.
Procedural Background
Copeland then sued GDOC, asserting three claims under Title VII. In Count I, Copeland alleged that GDOC subjected him to a hostile work environment because of his transgender status. In Count II, Copeland alleged that GDOC failed to promote him due to his transgender status. In Count III, Copeland alleged that GDOC retaliated against him for his complaints of sex discrimination. The court granted judgment in favor of GDOC, concluding, on Copeland’s hostile work environment claim, that the harassment he suffered was not sufficiently severe or pervasive. As to Copeland’s failure to promote and retaliation claims, the court concluded that Copeland could not establish a causal connection between his protected activity and GDOC’s decision not to promote him (until after he sued). Copeland appealed.
The Eleventh Circuit Concluded That Copeland Met His Burden to Establish Severe or Pervasive Harassment
The U.S. Court of Appeals for the Eleventh Circuit concluded that the lower court erred when it ruled that Copeland had not suffered severe or pervasive harassment.
Hostile Work Environment
Title VII makes it unlawful to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” This provision prohibits requiring people to work in a discriminatorily hostile or abusive environment.
To prevail on a hostile work environment claim, a plaintiff must prove several elements, including that the harassment was sufficiently severe or pervasive to alter the conditions of employment.
The “severe or pervasive” element has two subparts: one subjective and one objective. To satisfy the subjective subpart, a plaintiff must subjectively perceive the hostile work environment to be abusive. The lower court concluded that Copeland satisfied the subjective subpart. To satisfy the objective subpart, a plaintiff must show that a reasonable person would find the environment hostile or abusive. Here, the court found that Copeland’s claim failed to satisfy the objective subpart because a reasonable person would not have found the environment hostile or abusive.
Courts consider four factors to determine whether harassment of an employee meets this objective subpart: (1) its frequency; (2) its severity; (3) whether it is “physically threatening or humiliating”; and (4) whether it unreasonably interferes with job performance. Courts look at the totality of the circumstances to determine whether harassing conduct altered the terms and conditions of employment.
The harassment was frequent. When the Appellate Court considered the evidence, it easily concluded that a jury could find that the harassment Copeland faced was frequent. Copeland identified 34 individuals whom he says harassed him at work. In his deposition, he described how each of these individuals participated in his harassment. A list of instances of harassment that Copeland prepared spans seven typed pages. And, significantly, Copeland testified that certain harassment occurred daily.
The harassment was severe. Courts have long recognized that harassment is more severe when it occurs despite the employee’s objections. The Court here found that Copeland repeatedly objected to his coworkers’ treatment of his gender. He confronted coworkers directly. He told his shift supervisors about the harassment that he faced and spoke to HR multiple times. He met with the warden. None of these efforts abated the harassment.
Harassment also is more severe when it involves the participation of supervisors rather than only peers or subordinates. In this case, evidence existed that one lieutenant taunted Copeland and repeatedly called him “baby girl.” Another lieutenant addressed Copeland over the radio with female pronouns while other employees laughed.
In determining whether harassment is severe, courts also give careful consideration to the social context in which the alleged behavior occurs. The Court here concluded that, given that the harassment occurred while Copeland was working as a correctional officer, it was more severe. The correctional context is dangerous and sometimes violent. Among other things, harassment in this context sends the message to inmates that the victim is fair game.
Together, these considerations persuaded the Appellate Court that a reasonable jury could find that the harassment Copeland endured was severe.
The harassment was physically threatening and humiliating. Copeland presented evidence that he faced physically threatening harassment. Copeland testified that he feared for his life and immediately notified his supervisors of the threatening conduct.
The harassment that Copeland suffered also was humiliating. Courts have recognized that harassment that occurs in the presence of coworkers is especially humiliating. Copeland’s coworkers harassed him over the prison radio system, so that the whole institution could hear. He heard his coworkers laughing. He often had to explain his transgender status after being misgendered in front of subordinates.
The harassment negatively impacted Copeland’s job performance. Despite GDOC’s eventual promotion of Copeland, the Court found that the evidence supported an inference that the harassment undermined Copeland’s authority and his ability to command the obedience of subordinates. When Copeland reported instances of insubordination to his supervisors, they generally took no action, sending the message that insubordination directed at Copeland was acceptable. Inmates also participated in harassing Copeland, which the Court found to further support a conclusion that his mistreatment diminished his status and authority.
Ultimately, the Eleventh Circuit found that, viewing the totality of the circumstances, a reasonable jury could conclude that the harassment Copeland faced was objectively severe or pervasive enough to alter the terms or conditions of his employment.
Failure to Promote
In Count II of his complaint, Copeland alleged that, instead of promoting him, GDOC hired equally qualified individuals who are not transgender. However, he presented no evidence to support this allegation – no evidence about the individuals whom GDOC hired, who did the hiring, or what qualifications were considered. The Appellate Court found that lack of evidence to be fatal to Copeland’s claim.
Retaliation
Count III of Copeland’s complaint alleged that GDOC retaliated against him for engaging in protected activity – i.e., opposing sex discrimination. Similar to Count II, Copeland had no direct evidence of retaliatory intent.
In the end, the Eleventh Circuit remanded the case back to the lower court to determine, as to Copeland’s hostile work environment claim, whether GDOC was “responsible for” the hostile work environment, the last prong in a hostile work environment’s prima facie case.
Employer Takeaways
Earlier this month, we reported about a recent EEOC investigation into allegations of misgendering at a nursing home facility. This Eleventh Circuit decision reinforces the fact that repeatedly and intentionally misgendering someone can, and does, alter the terms and conditions of their employment in violation of Title VII.
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, Georgia, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
