Investigating Claims of Pronoun Misuse in the Workplace
Workplace investigators conduct investigations of all kinds. One that raises special issues involves pronoun misuse. A November 2024 report from the UCLA School of Law Williams Institute found that 82% of transgender employees experienced discrimination or harassment in the workplace at some point in their lives because of their sexual orientation or gender identity.[1] Sixty-five percent of transgender employees reported experiencing verbal harassment based on their sexual orientation or gender identity, including being persistently misgendered.[2]
Transgender and gender-nonconforming employees may face unique challenges that their cisgender counterparts do not, including being referred to by the incorrect pronouns. Pronouns—such as she/her, he/him, they/them, she/they, and ze/zir—are used to refer to an individual when their name is not used. Under California law, employees have a right to be referred to by their chosen pronoun. California’s Civil Rights Department declared that “intentional” misuse of a transgender or gender-nonconforming employee’s name or pronoun could constitute a hostile work environment.[3]
This blog post explores the legal protections provided to transgender and gender-nonconforming employees to have their correct pronouns used; recent legal challenges to these protections; and, practical tips for investigators as they investigate claims of pronoun misuse.
State of the Law.
In the last five years, legal protections for transgender and gender-nonconforming individuals in the workplace have changed drastically. With protections expanding and eroding, this section explores these developments.
Prior to 2020, under federal law, Title VII of the Civil Rights Act of 1964 did not protect employees from discrimination based on their sexual orientation or gender identity.
The 2020 U.S. Supreme Court changed this in Bostock v. Clayton County.[4] In this case, the U.S. Supreme Court held that an employer’s discharge of an employee because of the employee’s sexual orientation or gender identity was employment discrimination and violated Title VII.
In 2024, the Equal Employment Opportunity Commission (EEOC) updated its Enforcement Guidance on Harassment in the Workplace, incorporating Bostock and stating that “sex-based harassment includes harassment based on sexual orientation or gender identity.”[5] Such harassment included “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity.” While the guidance is not legally binding, it “addresses how harassment based on sex [and other protected characteristics] is defined under EEOC-enforced statutes and the analysis for determining whether employer liability is established.”
However, in mid-2025, a Texas District Court declared these portions of the EEOC’s guidance unlawful and vacated them nationwide.[6] It reasoned that the harassment guidance incorrectly expanded Bostock and “contravene[d] Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.”
Regardless, Bostock remains the law of the land, and employers may not terminate an employee on the basis of the employee’s sexual orientation or gender identity. For California employees, California’s Fair Employment and Housing Act continues to protect transgender and gender-nonconforming employees from harassment based on their gender identity. California’s Civil Rights Department confirmed that transgender and gender-nonconforming employees have a right to correct pronoun usage while at work:
An employer can be liable when customers or other third parties harass an employee because of their gender identity or expression, such as intentionally referring to a gender-nonconforming employee by the wrong pronouns or name.
Employees have the right to use and be addressed by the name and pronouns that correspond with their gender identity or gender expression.[7]
Practical Tips for Investigators.
Regardless of the state of the law in which you conduct investigations, the best practices for doing so remain the same. When conducting investigations into claims that employees were subjected to improper pronoun use, it is important that investigators (1) respect transgender and gender-nonconforming employees’ pronouns during the investigation process; and, (2) understand the analysis to apply to such claims.
Imagine a matter comes across your desk with the following facts:
Account Manager Kai identifies as nonbinary and uses the pronouns he and they. Kai manages Sales Manager Riley’s accounts. Riley is cisgender and uses the pronouns he and him. On August 6, 2025, Kai made a verbal complaint to Human Resources about Riley’s conduct. Kai alleged that Riley used the pronouns she and her in reference to Kai on four occasions.
What steps will you take to investigate Kai’s claims?
Prior to the Interview
Consider having your pronouns displayed in the signature line of your email communications. The introductory email is likely the first impression Kai will have of you. Including your pronouns in your email begins the process of building trust, transparency, and rapport with your interviewee. It demonstrates you understand the importance of using one’s correct pronouns.
During the Investigative Interview
Start the interview by introducing yourself and sharing your pronouns. This sets the stage for Kai to feel more comfortable sharing their own pronouns and their story with you.
In remote investigations, include your pronouns next to your displayed name on the videoconference screen (for example, “Olivia Totten, she/her”).
For both in-person and remote investigations, introduce yourself and share your pronouns (for example, “My name is Olivia Totten, and my pronouns are she and her.”).
Ask Kai if he is comfortable sharing his pronouns with you. The question can be as simple as “What pronouns do you use?” This shows you respect the interviewee’s pronouns and want to refer to them correctly.
In this case, Kai uses multiple pronouns (he and they), so consider asking clarifying questions to ensure you know how to properly refer to Kai. Some individuals who use multiple pronouns use them interchangeably (for example, “He applied for the job. They received an offer letter.”). Others may feel comfortable with the use of either pronoun (for example, “He applied for the job. He received an offer letter.” Or, “They applied for the job. They received an offer letter.”). Pronoun usage is personal. It is important to hear from Kai how to properly refer to them. This may easily be addressed by simply stating to Kai, “Thank you for sharing your pronouns. I heard you say you use he and they pronouns. I want to ensure I refer to you correctly. How would you like me to use these pronouns?”[8]
Writing the Investigative Report
It is equally important to respect Kai’s gender identity by using their correct pronouns throughout an investigative report. Because Kai uses multiple pronouns, make an effort to use the pronouns in the way Kai specified during the interview. When necessary, drop a footnote to explain the use of the multiple pronouns.
Equally important is the analysis of the claim. While we do not make legal determinations as investigators, understand the employer’s applicable policy and frame the analysis around that. Consider the following principles if you are analyzing whether Kai was reasonably offended by Riley’s misuse of Kai’s pronouns:
The number of times Riley used the incorrect pronouns
Whether Riley was aware of Kai’s correct pronouns
Whether anyone corrected Riley about Kai’s correct pronouns, and whether Riley continued to use the incorrect pronouns
Whether Riley was Kai’s supervisor
The manner and context in which Riley used the incorrect pronouns, including whether it was done privately or in front of colleagues or clients; and, whether it was part of any other inappropriate conduct
How Riley’s incorrect pronoun usage impacted Kai’s performance in the workplace
Even as the law around transgender and gender-nonconforming employees’ pronoun usage in the workplace changes, our investigations can remain the same—rooted in respect and understanding for all parties involved.
[1] Brad Sears et al., “Workplace Experiences of Transgender Employees,” UCLA School of Law Williams Institute, November 2024, https://williamsinstitute.law.ucla.edu/publications/transgender-workplace-discrim/.
[2] Sears et al., “Workplace Experiences.”
[3] “The Rights of Employees Who Are Transgender or Gender Nonconforming Fact Sheet,” Civil Rights Department, November 2022, https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/11/The-Rights-of-Employees-who-are-Transgender-or-Gender-Nonconforming-Fact-Sheet_ENG.pdf.
[4] Bostock v. Clayton County, 590 U.S. 664 (2020).
[5] See: https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
[6] Texas, et al. v. EEOC, 2:24-CV-173 (N.D. Tex. May 15, 2025).
[7] Civil Rights Department, “The Rights of Employees.”
[8] See: https://www.lgbtqandall.com/what-are-mixed-pronouns-or-pronoun-pairs-like-she-her-and-he-they/ and https://www.them.us/story/multiple-sets-of-pronouns.