By Michael Homans
Transgender rights have been much in the news lately and are starting to hit court dockets.
A “Jane Doe” nurse has sued Philadelphia’s Maplewood Nursing Home in the U.S. District Court here, claiming she was fired for objecting to misgendering by trainers there.
Doe states in the lawsuit, filed in January, that she is androgynous, prefers “she/her” pronouns, and has a visible beard.
On the first day of training (referred to in the Complaint as “orientation”), Doe claims that a female nursing educator referred to the group of new hires – six females and one male – as “guys.” Doe alleges she “let the issue go” the first day and hoped it would not be repeated, but it happened on the second day, and she responded to the trainer that it was illegal to misgender her.
In response, according to the Complaint, the trainer said she uses “guys” to refer to everyone and a higher-level manager told Doe that her workplace was not the place for political stances. After another back and forth, Doe claims she was fired due to discrimination based on sex and gender identity, and retaliation for her protected conduct in objecting to the misgendering.
No answer or motion has been filed yet, but we will not be surprised to see a motion to dismiss at least on the discrimination claim to challenge the limited facts alleged. The retaliation claim is tougher – while we understand the employer’s virtual eye roll at Doe complaining about the use of the general term “guys,” the discounting of the objection as “political” and the sudden firing do suggest she may have a viable retaliation claim.
The case highlights (1) the need for employers to train their managers on how state and federal laws now protect employees based on gender identity and the need to avoid discriminatory terms; and (2) that over-reacting to employee objections – no matter how “woke” or “political” they may seem – can land an employer in court.
Michael Homans is an employment lawyer and litigator based in Philadelphia and Wayne, Pennsylvania. He can be reached at mhomans@homanspeck.com or (215) 419-7477.