It is said that a good country song must include lyrics about heartbreak, mothers, prison, trains, rain, guns, Jesus, getting drunk, and pick-up trucks. Did you know there’s actually a song about that? “You Never Even Called Me by My Name” (sung by David Allen Coe on his 1975 album Once Upon a Rhyme) was written by Steve Goodman and John Prine, two of my favorite songwriters. It was a Top Ten Billboard Country hit.
Goodman put the song on his 1971 debut album but no one noticed. Prine asked not to be credited for writing it, because (according to Wikipedia) he “thought it was a ‘goofy, novelty song’ and did not want to “offend the country music community.”’ Click the link above if you want to hear or read the lyrics to this “perfect country and western song.”
A recent decision from the Eleventh Circuit made me think of this song’s title. In Copeland v. Georgia Dep’t of Corrections, No. 22-13073 (11th Cir. March 28. 2024), a trans male corrections officer complained of sexual harassment following his transition. Among the many indignities Copeland had to suffer, he was not referred to using male pronouns. Daily (and sometimes many times a day) he was called “her,” “ma’am,” “that” and “it” by coworkers. All told, said the court, “Copeland identified 34 coworkers who participated in harassing him.”
Copeland raised concerns regarding this harassment through his entire chain of command. He got nowhere. One supervisor suggested that he give coworkers “more time to adjust.” After repeated efforts to resolve the issue at work failed, Copeland filed an EEOC charge.
He then filed a lawsuit. The district court granted summary judgment in favor of the Department of Corrections, finding that the complained of conduct was not sufficiently “severe or pervasive” to be actionable sex harassment under Title VII. Copeland appealed.
The Eleventh Circuit reversed, remanding the sex harassment claim to the district court for trial. The court first noted that in Bostock v. Clayton County, 590 U.S.. 644 (2020) the Supreme Court recognized that Title VII’s protection “because of sex” included gender identity and sexual preference.
Next, it considered that under the Court’s decisions in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) and Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a harassment claim is actionable when an individual is subjected to a “work environment sufficiently suffused with ‘intimidation, ridicule, and insult . . . to alter the conditions of the victim’s employment.’ [citation omitted]. This standard does not require a plaintiff to suffer a ‘serious effect on [his] psychological well-being’ nor even a ‘tangible effect[]’ on his job performance before suing.”
It is true, the Supreme Court has said that Title VII does not create a civility code for the workplace. Not every slight, misuse of language, or insensitive comment creates a claim.
Whether conduct is “severe or pervasive” is looked at subjectively and objectively: (1) did the plaintiff feel that the conduct was harassing; and (2) would a reasonable person in the plaintiff’s position find the conduct to be abusive. The district court, and the Department of Corrections, challenged only the “objective” side of the coin. No reasonable person, it was argued, would have found the conduct Copeland dealt with harassing.
The Eleventh Circuit has developed four factors to determine whether conduct is objectively harassing: (1) its frequency; (2) its severity; (3) whether it is physically threatening or humiliating; and (4) whether it unreasonably interferes with performance. After assessing these, a court looks to the “totality of the circumstances” to determine whether the case should proceed.
Perhaps you can sense where this analysis was headed. The appellate court found that Copeland’s evidence suggested he met all four factors. And, under the totality of the circumstances, there was harassing behavior. On remand a jury will decide whether the Department of Corrections is liable for that conduct through direct or vicarious liability.
The takeaway here? Put aside for the moment the complete insensitivity of the employer here. Focus on the language. The use of appropriate pronouns is a real thing, and it receives heighted scrutiny today. Using gender neutral pronouns is appropriate. Not using the preferred pronoun someone asks you to use quickly falls into the “unwelcome” world of harassment. The conduct Copeland dealt with here was not an inadvertent or a one-time mistake. Employers should address employee concerns on this issue with the same open mind and compassion that they apply when addressing other claims of harassment based on sex, race, national origin, or any other protected classification. And remember, if you have a problem with pronouns, you can always call people by their name.