By Jim Cline and Peter Haller
In Copeland v. Georgia Department of Corrections, the 11th Circuit Court of Appeals ruled that a transgender male corrections officer demonstrated that he suffered intentional and repeated misgendering in the workplace. These facts were sufficient to give rise to a hostile work environment claim.
Tyler Copeland, a Georgia corrections officer, came out as transgender three years ago to his fellow corrections officers. Since then, Copeland was subjected to a pattern of crude jokes regarding his genitalia and was continuously referred to as “ma’am” by his peers, despite his continued objections. Human resources personnel declined to intervene. Copeland sued the Georgia Department of Corrections in Federal Court.
In federal district court, the Department of Corrections argued that referring to Copeland as “ma’am” was not inherently offensive. Further, it argued that the pattern of misgendering and jokes directed at Copeland was not sufficiently severe and pervasive enough to support a harassment claim. The Federal District Court in Georgia found this argument persuasive and dismissed Copeland’s case. However, now Copeland’s case has been revived after a successful appeal to the 11th Circuit Court.
In analyzing the allegations of harassment, 11th Circuit Court used the four Mendoza factors: 1) frequency of harassment, 2) severity of harassment, 3) whether the harassment is physically threatening or humiliating, and 4) whether the harassment unreasonably interferes with the job performance. In citing to the Supreme Court decision in Mendoza, the Court noted that,
“The objective element is not subject to mathematical precision… Instead, our task is to determine under the totality of the circumstances whether the harassing conduct… altered the terms or conditions of the plaintiff’s employment.”
The Court noted that the factual record demonstrated that the pattern of harassment was daily. Further, the harassment both interfered with job performance and physically threatened Copeland because inmates who witnessed the harassment responded by continuously disobeying Copeland’s orders. Lastly, the harassment was especially severe because Copeland’s supervisors declined to intervene and even participated in the harassment. Therefore, Copeland’s allegations were sufficient to survey summary judgment and send the hostile work environment claims back for a jury trial.
Courts are clear that sex discrimination laws extend to sexual identity issues including transgender status. Courts are also clear that employers have a duty to take action to prevent hostile work environments and harassment based on protected status. Human resource officers standing by without action are going to create employer liability.
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