September 22, 2016
This decision is a significant precedent for the rights of transgender individuals to be free of discriminatory harassment in the workplace, and the responsibility of employers to take harassment complaints about gender, sexual orientation, and gender identity seriously.On August 9, 2016, the Massachusetts Commission Against Discrimination (“MCAD”) announced an important ruling concerning the rights of Massachusetts employees to be free from discrimination based on their transgender status, gender identity, or sexual orientation. The decision is a loud and clear legal precedent that intentional misuse of gender pronouns and gender based words to refer to a transgender employee can amount to unlawful, discriminatory harassment.
This decision is a significant precedent for the rights of transgender individuals to be free of discriminatory harassment in the workplace, and the responsibility of employers to take harassment complaints about gender, sexual orientation, and gender identity seriously.The Tinker v. Securitas (MCAD Docket No. 13-BEM-01906, (August 9, 2016)) decision found that Securitas Security Services USA, Inc. (“Securitas”) discriminated against Mr. Alyx Tinker (“Tinker”) based on his transgender status. Specifically, the commission ruled in favor of Mr. Tinker’s claims of discrimination from Securitas and his former supervisor on the basis of gender, gender identity, and sexual orientation. To briefly summarize, Mr. Tinker began working at Securitas, prior to his transition, as a female who self-identified as lesbian. During his time at Securitas, Mr. Tinker came out to his co-workers and supervisors as a transgender man and began his transition. He underwent hormone therapy and surgery as part of the transition process, changed his name, and asked his supervisor to refer to him by his new name and with male pronouns. The MCAD found that Mr. Tinker’s Securitas supervisor did not respect Mr. Tinker because he was transgender and he discriminated against Mr. Tinker because of his gender identity and sexual orientation. The MCAD decision credited Mr. Tinker’s testimony that his supervisor ridiculed Mr. Tinker, stating that he would “never be a real man,” that his insides would fill with scar tissue, and that the transition he was undertaking was wrong. The Securitas’ supervisor was attributed with telling Mr. Tinker that he was “unclean” and “going to go to hell.” After hormone treatment began, the Securitas supervisor was found to have told Mr. Tinker that his brain would continue to grow because biologically men are smarter than women. While Securitas claimed that the supervisor stopped referring to Mr. Tinker with she/her pronouns within months of being asked to transition into using he/him pronouns, this claim was undermined based upon an e-mail following Mr. Tinker’s coming out as transgender in which the supervisor repeatedly referred to him with she/her pronouns (at least nine times in one e-mail). The email was written roughly two years after Mr. Tinker asked to be referred to with male pronouns. The MCAD found that Mr. Tinker complained about the way he was being treated to several Securitas supervisory managers. Nonetheless, Securitas never disciplined Mr. Tinker’s supervisor for the way he communicated to or about Mr. Tinker, including for the several instances of misgendering. Mr. Tinker suffered emotional stress and anxiousness due to his mistreatment at work. He had nightmares and trouble sleeping, and came to dread the prospect of being alone with his supervisor.