- Persistent failure to use a transgender employee’s preferred name, or update the employee’s records to reflect the preferred name, may constitute harassment.
The EEOC in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), held that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment. In Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (E.E.O.C.) (Apr. 16, 2014), the EEOC held that an employer’s year-long failure to revise its records pursuant to changes in gender identity was severe or pervasive enough to constitute a claim of sex-based harassment.
The prevalence of employees identifying themselves as “whistleblowers” has expanded in recent years due to expansion of federal and state whistleblower rights. Recently, a recently enacted federal law, the Defend Trade Secrets Act of 2016 (“DTSA”), created a new class of whistleblower protection rights. The DTSA creates a federal private civil action for the misappropriation of trade secrets. Included in this Act, however, is a provision for immunity from both civil and criminal allegations, under state and federal law, for employees and independent contractors who are whistleblowers. (more…)