Amid quickly shifting cultural norms and a changing legal landscape, legal experts say skilled nursing providers must better understand how to protect employees from sex and gender discrimination — including misgendering — or face increasingly common consequences.
Last week, the US Equal Employment Opportunity Commission announced it had settled with a nursing home over claims that it failed to address workplace harassment against a former supervisor whose gender identity and pronouns were allegedly ignored by coworkers intentionally for at least half a year.
The EEOC alleged Columbia River Healthcare violated the Civil Rights Act of 1964 when it failed to take action to stop the misgendering, despite multiple reports from the former employee.
Similar EEOC claims and lawsuits have been used increasingly by employees facing sex and gender discrimination in recent years, according to employment lawyer Sam Schwartz-Fenwick of Seyfarth Shaw LLP. That increase began following a 2020 US Supreme Court ruling that sexual orientation and gender identity are protected under Title VII of the Civil Rights Act.
The court left it unclear whether using incorrect pronouns directly violates the act, but the EEOC claims against Columbia River Healthcare framed the consistent misgendering as creating a hostile work environment, Schwartz-Fenwick told McKnight’s Long-Term Care News.
“The EEOC noted it wasn’t by mistake, it was repeated and often — certainly that fact pattern does lend itself to saying that it is a hostile environment,” he said.
Settlement requirements
The Vancouver, WA, nursing facility— which operates as The Oaks at Timberline — agreed to pay damages to the employee and update its discrimination policies, according to an EEOC report on the settlement released May 23. It will also provide training for all employees, with additional training required for the employees and managers involved in harassment alleged by the EEOC case.
The report noted that providers would not be held accountable for occasional, accidental cases of misgendering, but have a duty to intervene in cases of intentional harassment.
“Accidental slip-ups may happen, but repeatedly and intentionally misgendering someone is a clear form of sex-based harassment,” said Elizabeth Cannon, director of the EEOC Seattle Field Office, which has jurisdiction over five states in the Pacific Northwest. “Employers have a duty to intervene when employees — including transgender, non-binary and other gender non-conforming individuals — are treated maliciously in the workplace because of their gender identity.”
Columbia River Healthcare did not respond to McKnight’s requests for comment by publication deadline.
Provider policies
With claims like these becoming more common, providers would do well to take proactive steps to train and solidify policies on gender identity and pronoun use in their facilities, Schwartz-Fenwick told McKnight’s.
“The best defense is to do a thorough training that shows that the employer has its head in the right place and is trying to arm employees with the tools they need,” he explained. “Doing that mitigates risk.”
“It never hurts to have a policy on pronoun use,” he continued. “Some employers don’t want to be too policy heavy, and that’s fine also, but then you just want to make really clear what the parameters are and what your expectations are.”
For providers facing reports of this sort of situation for the first time, Schwartz-Fenwick advised they instruct their HR and legal teams to take any complaints seriously and be ready to escalate when in doubt.
Providers found to have violated Title VII would likely be held liable for former employees’ back wages — including any potentially lost wages from a missed promotion — as well as damages for pain and suffering, Schwartz-Fenwick said.
He also noted that this is not just an employment law issue, but an issue of respecting residents’ rights as well.
“An interesting angle for the healthcare space is that you’re also dealing with patients,” he explained. “You want to be sure that your staff isn’t only respecting each others’ names and pronouns, but they’re also using proper names and pronouns when talking to patients or individuals who live in a senior living facility.”
