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The workplace can be a challenging place. It is a place in which safety has evolved significantly in the last 100 years. There are layers of protections for workers today that simply did not exist a century ago. Examples, beyond workers' compensation, include the FMLA, the ADA, the OSHA, Social Security, and more. We have seen the Equal Employment Opportunity Commission dawn and become pervasive in the workplace. Some have the sense that this journey has just begun. Some think we have gone too far. Others are merely bewildered, and they stumble through the workday hoping for the best.
Words have long mattered in the workplace, and there are few objective standards as to what words are either appropriate or not. There is a litany of context and circumstance that are intertwined and thus challenging for management. Is it appropriate for one to use a particular word? Does it matter who uses a word? Does it matter how that word use is perceived by others? If it is self-deprecating, can it nonetheless be offensive to some listener? As rights collide, where does one person's freedom of speech stop and another's freedom from offense start?
The news recently highlighted the settlement of a California fast food case that brings the discussion further. A new hire found that (insert pronoun, or "IP") was challenged by (IP) pronouns in the workplace. The worker was allegedly "repeatedly misgendered by co-workers." The worker complained to management about the co-workers' use of pronouns and did not feel that (IP) received the appropriate managerial support. The worker "filed a complaint" alleging (IP) "was subjected to "discrimination, harassment and retaliation." The restaurant chain has agreed to pay the former employee $20,000.
This becomes potentially complicated by the preference for less familiar pronouns (zie, zim, zir, zis, zieself). Some adopt instead plural practices, opting for "they," "them," etc. This is confusing to some, whose experience with the language suggests that plural actually refers to more than one. This is an antiquated concept, English that is. And perhaps the dinosaurs that cling to such things as tense, number agreement, nouns, verbs, adjectives, punctuation, and the rest of that nonsense need to just get over it. Just know that what one says may or may not be what one (or more) means. The point is personal comfort, not effective communication.
The restaurant employee in this news story complained that management did not correct coworkers and enforce the pronoun use to which (IP) adhered. Instead, "Management told (IP) repeatedly that (IP) would have to explain (IP) gender to co-workers rather than rely on management to correct discriminatory behavior." In the article, the author elected to use pronouns. It is unknown whether those were designated by the complaining party or assumed by the author. When one quotes a source, we are dependent upon their research, conclusions, and presentation, or we can ungender with an ("IP").
There is perhaps some limitation to this $20,000 settlement as the news notes that "California law prohibits 'intentional misgendering' in the workplace." This suggests that any such use of pronouns would first have to be "intentional." It is not clear whether ongoing and persistent negligent or even willful indifference would suffice. And, second, as this is in California, perhaps the outcome would be different in other jurisdictions. Possibly not all states have a "misgendering" limitation on free speech. Or, perhaps it is a "hate speech" exception to free speech. Should constitutional protections on free speech exist in the workplace?
The story illustrates the challenges that management faces in the broadest contexts. From years in the restaurant industry, long before the labor challenges of COVID, finding and retaining staff can be challenging. Training and supervising staff can be challenging. Being the only on-duty manager, with responsibility for both the kitchen and dining room can be beyond challenging. And, in the midst of the workday, a variety of other complications can come to the fore including plumbing, cleaning, inventory, customers, and more. Every restaurant critic should do a mile or two in those sandals. But, perhaps most important is the challenge of assuring that no one's speech creates a misgendering.
I recall, as these thoughts cascade, a bit by noted comedian bblbblbblbblbblb (whose stage name is Steve Martin). Steve described in the 1970s how (IP)'s parents had bestowed challenging names on both Steve and a sibling. There is some illustration mentioned there of how neighbors perceived Steve's birthing parent when the humans of non-majority were summoned. That is of interest, perhaps, as the perceptions and conclusions of the neighbors may be as important as those of restaurant patrons. If an employee insists that (IP)'s pronouns are "your highness" and "gesundheit," how might the customer perceive hearing communication with your highness? If I offend you by using his "preferred name" of "Steve," I apologize. Writing this, I am thinking of Bud Abbot, and I cannot figure out why.
In what universe does it matter what someone wants to be called? If bblbblbblbblbblb is troubled by that moniker and wants to be known as "Steve Martin," it is likely irrelevant what anyone else thinks of that. Arguably, what is relevant is that "Steve" prefers that. Though we may feel there is a Constitutional right to free speech, calling "Steve" "bblbblbblbblbblb" may be hurtful or upsetting. But a great many things one might say are potentially hurtful or upsetting. Shall we ban them all?
Certainly, in a work setting, the use of pronouns or names might be subject to constraints. The language used might be offensive to customers and thus damaging to the business. If a counter worker in a restaurant asks to be called an expletive, slur, or insult then there might be a problem. Most will likely agree that restaurant patrons could react badly to some employee being persistently referred to as "idiot," despite that being the employee's choice and preference of personal pronoun. Other examples might be even more pejorative and challenging.
The personal pronoun discussions are not new. The University of Michigan allowed students to designate pronouns back in 2017. The responses it received were intriguing. Students asked for such references as “The Exalted King,” “Supreme Leader,” “A Man Has No Name,” “LG LCRT2010ST Microwave Oven,” and “(-b +- sqrt(b^2 – 4ac) ) / 2a.” I know how often people mispronounce my name. I might struggle with how to pronounce that last one. Or, might I inquire "can I just call you 'Microwave' for short?" Or do I risk offense by pronunciation? See Key and Peele.
In 2022, the 6th Circuit (in Cincinnati, the chili capital of the world) concluded that Professor Meriwether of Shawnee State University had a free speech right to decline to use the preferred pronoun of a student. The professor used the reverence "sir" to refer to a student that did not prefer that. A second case is in the news more recently, at Southern Utah. A similar incidence of title or use is now the focus of the university. Professor Buggs there has reportedly been admonished and perhaps faces further scrutiny or discipline. A lawsuit has reportedly been filed.
Professor Buggs apparently was asked to call a student by plural pronouns "they" and "them." When he declined and used the "student’s given or preferred proper name" the student "filed a Title IX complaint against him." This seems not to be an avoidance of pronouns one does not like (use of the name and even preferred name does that), but an insistence that the professor use the preferred pronoun. This is not freedom of speech as much as it is compelled speech. In Michigan, which might be “(-b +- sqrt(b^2 – 4ac) ) / 2a.” In the example above, it might be "idiot" or worse. I struggle with understanding how there is some personal harm in being called your name?
Workers nonetheless deserve respect and appreciation. If an employee is offended because a co-worker persistently utters some absurdity like "roll tide," "gator nation," "geaux tigers," or "hoddy toddy" management should absolutely intervene. There is offensive and then there is offensive. No offense. I will no doubt hear from some graduates of those magnificent institutions of higher learning. And, I reiterate, no offense. It's a joke.
But, where will the apparent conflict between freedom of speech and freedom from discrimination end? The Supreme Court of the United States has concluded already that the Civil Rights Act protects against discrimination based on sex. Bostock v Clayton County, 140 S. Ct. 1731 (2020). The 6th Circuit has concluded that does not necessarily mean that a person's pronoun preference can be enforced. The Utah case may sort out whether I can be forced to call you "idiot." The California settlement suggests that it disagrees with the Cincinnati court.
Undoubtedly, one of these disputes will reach the Court one day and we will get a clearer picture of how the employer's responsibilities in the workplace coincide with the free speech rights of the speaker and the discrimination protections of the listener. While it is likely, it has not happened yet. In the meantime, there is likely significant money being invested in litigation and lawyers to strive to sort out these competing interests. When we reach a point where one may be sued for declining to use a word you prefer, and simply call you by your name, we are perhaps down the rabbit hole.
Imagine what we might devote resources to instead of litigation over forcing people to call us what we prefer, regardless of the potential for offense. Perhaps, a universal pronoun of some manner would suffice to render everyone pleased and satisfied. Could we all agree on some such word? In America today, we seem incapable of agreeing with anything. But maybe our universal, ungendered, pronoun could be O-H-I-O! Imagine a school so proud of itself that it spells its name at the drop of a hat. Let's just replace all pronouns with Ohio? But in California and perhaps in Utah, the government will force the use of some other choice.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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