Policy requiring employees speak only with gender neutral pronouns?

November 9, 2016 11:50 AM

A new transgender supervisor wants to implement a policy that requires employees to use gender neutral pronouns at all times... Is this sort of thing allowed? Where is the legal basis for this?

My wife works for a nonprofit organization that helps disabled people in their workplace. Not too long ago they got a new supervisor (on the administrative side of things) who is transgender and has a autism spectrum disorder.

Recently he told my wife that he will be conducting gender neutrality training and will soon be implementing a policy where people need to use gender neutral pronouns such as 'zie' rather than he/she.

Is there any legal basis to this whatsoever? I understand if my wife were to not comply they could 'let her go' for 'staffing purposes' but does the Department of Labor actually allow employers to control what pronouns their employees use?

posted by ascetic to Law & Government (20 answers total)

I'd drop a note to the National Workrights Insititute since this is in an area of workplace law that is unlikely to have seen a lot of litigation. Excerpt from the interview of the author by NPR.
posted by jessamyn at 11:59 AM on November 9, 2016 [1 favorite]

IANAL, and I don't know. But I recently read a column about a professor who refused to use a non-traditional pronoun and got fired for his trouble.

It's hard to imagine you can be fired for using the pronouns that are used in law.
posted by SemiSalt at 12:02 PM on November 9, 2016

In an at-will state, you can be fired for anything at all, as long as it isn't a reason specifically proscribed by law. Most states have laws specifically proscribing adverse employment actions on the basis of sex discrimination. You could make an argument that a policy like this (IF it were implemented and IF anyone were subject to adverse employment action on its basis) discriminates against everyone who doesn't identify as "zie."

It's a leap from this one person thinking it'd be an awesome idea, to the nonprofit's Board of Directors actually allowing them to fire people on the basis of it.
posted by fingersandtoes at 12:11 PM on November 9, 2016 [3 favorites]

If it was issued as a guideline that everyone was to try and follow, I'd have no problem with it. We should all do what we can to be inclusive. But, if it's handed down as a "You will follow this rule immediately or face termination" edict, I'd say they are wayyyyyy out-of-line.
posted by Thorzdad at 12:12 PM on November 9, 2016 [7 favorites]

I believe that in certain cases, courts have held that someone consistently calling a person by pronouns which are opposed to the persons' gender identity constitutes gender harassment (i.e. repeatedly referring to a transgender woman as "he" or "it"). This is mostly in the context of title IX though, which is a relatively specific context.

Certainly, if your wife's supervisor said that everyone was to be referred to by male or female pronouns, it would be an issue, however whether or not using gender neutral ones would consist of gender-based harassment is to my understanding an open question. Your post doesn't mention it, but under the proposed policy, were someone to say "I actually use he, thanks!", would it be permitted to refer to that person as "he"? If that's the case, then I have a hard time seeing where the issue is.
posted by phack at 12:17 PM on November 9, 2016 [1 favorite]

I'd imagine employees could make a case that referring to them as 'zie' would be misgendering them. That's not straight up across the board illegal or anything, but it's also not uniformly acceptable.

The legalities of this specific thing don't seem to have been tested, and state laws are all different, but if nothing else, it would be a risky and potentially alienating policy.
posted by ernielundquist at 12:17 PM on November 9, 2016 [1 favorite]

What do the new supervisor's bosses think of this? Has anyone other than this supervisor decided on this new policy, does the Board of Directors even know about this?
posted by easily confused at 12:18 PM on November 9, 2016 [2 favorites]

I've reread your question a few times, but I'm still not sure which of these two situations you're describing:
(A) Employees will be required to use gender neutral pronouns to address a specific co-worker(s) who prefer to be addressed by those pronouns, or
(B) Employees will all be required to address each other by gender neutral pronouns, regardless of their individual gender identity and pronoun preferences.

If the situation is (A), then your wife should either comply or prepare to quit/be fired.
If the situation is (B), then that's pretty strange and outside the norm; it might even put the organization at risk for claims brought against it (though I honestly have no idea how those might turn out, given that, as jessamyn said, this is an area that has not yet seen a lot of litigation). She should go to her supervisor's supervisor to complain. If her new supervisor is at the top of the chain, she should try the board of directors (every nonprofit has one).
posted by ourobouros at 12:24 PM on November 9, 2016 [2 favorites]

Response by poster:

Your post doesn't mention it, but under the proposed policy, were someone to say "I actually use he, thanks!", would it be permitted to refer to that person as "he"? If that's the case, then I have a hard time seeing where the issue is.

The policy hasn't gone into effect nor has there been any official training, this was only a notice. While I can't say for sure, I'd have to guess that it would be OK to refer to someone as "he" if that person is openly identifying as a male. I believe the policy will be to refer to everyone as "zie" until that person confirms their identity.
posted by ascetic at 12:25 PM on November 9, 2016

I hate to ask this, but did your wife fully understand the request? I'm not sure I understand exactly what the issue is here from your description.

Could it be that the supervisor is changing their own pronoun and personally requesting "zie" or hosting a workshop in light of another coworker now requesting "zie"?

In some localities, you are required to use the pronouns that a person requests in the workplace. Is the supervisor asking that your wife refer to the supervisor or other people in the workplace who have requested this as "zie"? If so, this could be legal or would at least be basic courtesy (refer to individuals how they have asked you to refer to them.)

Could it be that there is a new style guide for employees?

It is perfectly legal to ask employees to use certain language as part of a job duty (for example, using Mr. or Ms. Lastname even when a first name would be used normally; using "Guest" in place of "Customer," etc.)

Is the supervisor banning personal pronouns in the workplace?

That is to say, is your wife allowed to use "she" for herself (assuming that's her preference) or must everyone be "zie"? This may still be legal, but it would be possible to challenge with HR, your parent company, or with the DoL for sex discrimination.

Is the supervisor accurately reporting the situation to your wife?

The supervisor may be feeling threatened and vulnerable about being asked to present a workshop about the basic courtesy of respecting other people's pronouns, however unusual they might be. Some people feel very threatened by the existence of trans or gender-nonconforming people, so the supervisor may hear "nobody gets to have pronouns any more panic fear dystopia" when HR is saying "You have to respect unusual pronouns like sie/hir/they/ze and we're asking you to present this workshop."
posted by blnkfrnk at 12:25 PM on November 9, 2016

Response by poster: To clear up any confusion, the policy (as it stands now) will be to refer to all employees as "zie" until that person says "Hey, I'm Frank and I identify as a male - it's OK to refer to me as he or him."

I'm asking, is it grounds for termination if my wife does not refer to people as 'zie'.
posted by ascetic at 12:30 PM on November 9, 2016

Most likely, yes.

As described, this seems like a very odd policy except in certain exceptional circumstances that don't seem to apply here. Did this policy originate with the supervisor, or is this an implementation of a mandate from above? If the former, this might be worth quietly exploring with the supervisor's superior. But only--and I can't stress this enough--if your wife's issue is with the mandatory use of "zie" with respect to people who have not requested it. If she just doesn't like "weird pronouns," then she is just going to look like a jerk.
posted by praemunire at 12:37 PM on November 9, 2016 [1 favorite]

Your profile says you're in NY. If that's true, yes, your wife can be fired over this. According to the Attorney General's office, NY is an "at-will" state, which means an employer can fire an employee for literally any reason they want, except those protected under federal law.

It would not be uncommon for an employee to be fired for refusal to use company-approved language. In every public-facing job I've ever had, there was company-required language, and this isn't any different.
posted by FirstMateKate at 12:37 PM on November 9, 2016 [2 favorites]

I would stray away from causing a fuss about this because, like I said, having company-mandated language is not uncalled for and not uncommon. If your wife has a problem with this, it will most definitely come across as transphobic.
posted by FirstMateKate at 12:40 PM on November 9, 2016 [2 favorites]

Response by poster:

Did this policy originate with the supervisor, or is this an implementation of a mandate from above?

It originated with the recently hired transgender supervisor. This person also makes coworkers push a button at his desk to request to speak to him. If a person just walks up and starts talking, it "triggers him."

Your profile says you're in NY.

Sorry, haven't updated in awhile. I'm currently in Washington (thanks, military!).
posted by ascetic at 12:41 PM on November 9, 2016 [2 favorites]

Best answer: Thanks for the clarifications. The narrow answer to your question is: yes, she can probably get fired for that. At a certain point, it's not about the specific instructions that your supervisor gives you; it's about the insubordination. Best case scenario is that she gets fired, brings a suit in a very murky and un-precedented area of litigation, and somehow by random chance wins. She'll probably have better luck addressing her concerns proactively now through constructive dialog with her supervisor & her organization.

It sounds like the new supervisor is trying to get employees to respect people's pronouns / not make pronoun assumptions. That's a reasonable goal. That said, there are many ways to achieve the goal. There are a variety of tried & true procedures that can be used in this situation (for instance, "upon meeting a new client/co-worker, ask about pronouns," "put pronouns on nametags," or "ask about pronouns on client intake form/new hire paperwork"), any of which might be more practical for your particular organization.

Depending on your wife's position, she might be able to bring some constructive suggestions directly to her supervisor (anything from, "Can we consult an experienced trainer to get advice on best practices? Here's one I found in the area" to "Here's a brochure I found on best practices in the workplace -- would these be acceptable alternatives to the procedure you described?"). Again, it would probably work best if brought in a spirit of collaboration & support for the actual goal. If the new supervisor is unwilling to listen, then escalating to their supervisor or the board is still the way to go.
posted by ourobouros at 12:44 PM on November 9, 2016 [3 favorites]

For what it's worth: My preferred pronoun is 'zie,' and I spend a lot of time in communities where people use this and other nonstandard pronouns. Nobody gets this shit perfect right away. In fact, nobody gets it perfect ever. We screw up each other's pronouns, at least occasionally, no matter how long we've been in this community and no matter how hard we are trying — and the polite thing to do is to accept the correction, apologize briefly, and move on.

It is very, very unlikely that your wife's boss expects immediate, perfect compliance, especially from a bunch of (I'm guessing?) cis people. If zie uses nonbinary pronouns hirself, or spends time in communities where they are normal, zie will know from firsthand experience that that is not a realistic expectation. Unless zie is deeply unhinged or totally out of touch with reality, the most zie will expect is a good-faith effort to learn the new pronouns and a reasonable show of improvement.

I know this isn't as reassuring as a legal opinion saying "No, zie can't do this at all." But maybe it will still be somewhat reassuring?
posted by nebulawindphone at 12:45 PM on November 9, 2016 [2 favorites]

I have worked in workplaces where we were told to use "they" in all references to people we didn't personally know. This was 25 years ago, so it was kind of radical at the time. I was told not to write "s/he" because it was binary. Most of my work was in writing. We didn't apply it in person, except that we would use words like "spouse" or "partner". I can imagine today that we might be encouraged to use "they" until told otherwise. I am teaching my kids to ask for pronouns, although we still make a lot of assumptions.
posted by Chaussette and the Pussy Cats at 1:56 PM on November 9, 2016 [1 favorite]

I'd be tempted to look at what you hope to gain by pushing back on this.

Here's how this kind of thing usually goes: there's a large group of people, mostly cis. They are asked, formally or informally, for their pronouns. They all say things like, "I'm Frank, I use he/him pronouns" or "I'm Clelia and I use they/them pronouns" and you're all set. Anyone who doesn't want to say "please use these pronouns for me" gets zied. Result: nothing much changes, except that you're not going to end up she-ing someone who doesn't identify as a woman and there's some rhetorical space for people with uncommon genders.

Pushing back on this will achieve...what? Well, assuming it doesn't achieve bad blood or job loss, it's going to achieve she-ing the occasional person who is not a woman, he-ing the occasional person who is not a man and generally making people with uncommon genders feel kind of shitty, while making everyone with a very standard gender presentation and cis gender identification feel just like they usually do.

I have a gender presentation that confuses a lot of people. It just so happens that I am happier with he pronouns but don't care that much - I know that it's a bit of a guess for people. What I have observed is that the people who freak out are cis people who 'misgender' me. They are far more likely to be upset, embarrassed, angry at themselves, angry at me or uncertain how to proceed than I am likely to be upset. I'm all "eh"; they're all "I'm pissed off that this person's gender confused me, and also I feel like maybe I insulted them".

In short, if your wife's place of business is going to deal with a reasonable number of people who are not cisgender people with very mainstream gender presentation, it may actually be the cis people who are set at ease by this kind of policy.
posted by Frowner at 2:32 PM on November 9, 2016 [13 favorites]

If you don't know someone's preferred pronoun, why shouldn't you use a gender neutral pronoun?

I just met a coworker named Robin after months of being on the same correspondence. I'm grateful I default to they, because I was totally expecting a lady Robin, and not a dude Robin.

My name is easily mispronounced. And given the team aspect of my work, it can often feel uncomfortable to take two minutes out of a meeting to bring attention to my name. So I don't. But in that scenario, it's both a minor annoyance, and one I can mitigate by introducing myself loudly and often. Similar to sexual orientation, gender identification is deeply personal. Failing to create a culture that defaults towards acknowledgement, and at least tolerate, a variety of gender identities is critical towards not creating a hostile work environment.

Perhaps this goes farther than many workplaces and social norms. But that's also why many environments are currently hostile to transgender folks and potentially setting themselves up for significant legal risk, if the courts catch up with an accurate reading of the 14th amendment.
posted by politikitty at 3:58 PM on November 9, 2016