SOMETIMES IT GETS WORSE: BULLYING OF LGBTQ INDIVIDUALS IN THE WORKPLACE

Alexandra Tracy-Ramirez

Abstract

In response to several publicized cases of bullying against lesbian, gay, bisexual, transgender, and queer (LGBTQ) teens, famous U.S. personalities from Ellen DeGeneres to President Obama are compiling messages of hope, proclaiming the campaign’s message: “It gets better.” The sad reality is that for many LGBTQ individuals, while bullying in school may end, it may pick up with a new fierceness once those individuals enter the workplace. One glaring gap in the federal U.S. civil rights scheme is its inability or unwillingness to account for the fluid, dynamic, complex nature of identity, particularly sexual and gender identity. While Title VII of the Civil Rights Act of 1964 theoretically protects workers against harassment on the basis of sex, dominant interpretations tend to exclude harassment that is not sexually explicit or that targets a person’s sexual orientation or gender expression rather than biological sex. I employ critical discourse analysis as a tool for examining several infamous U.S. cases involving transgender plaintiffs and claims of bullying, violence and/or harassment in the workplace. The analysis shows that in addition to the litany of bullying abuses any bullied worker might face, LGBTQ workers face identity-specific behavior and ridicule. Trans employees, in particular, may be targeted with abuses such as “not addressing a person by her or his chosen name or pronouns, refusing to allow a person to use the appropriate bathroom, and asking offensive questions about a person’s medical history or genitalia.” Targets of de-humanizing bullying may turn to the law for help but are often met with disgust and disapproval and portrayed as frauds, counterfeits, animals or monsters and interpret prohibitions against sex-based harassment to exclude bullying against transgender employees. Unsurprisingly, most suits fail because existing legal ground for LGBTQ plaintiffs to stand on is narrow and shaky at best and not generally strong enough to overcome legal and social prejudice. The expanding study of workplace bullying illustrates how the adoption of status-blind prohibitions against workplace violence may supplement existing law. Such protections would remove identity as a component in the legal cause of action. A viable legal theory that recognizes the severity, validity, and redressability of workplace bullying claims offers one large step away from the current reliance on the identity and motivations of the target and perpetrator, respectively, and toward a positive framework of creating less abusive work environments overall. The Healthy Workplace Bill or similar laws added to the jurisprudence of workplace harassment can give individuals and groups the tools and leverage to reduce harassment targeting LGBTQ workers, promote the safe and free expression of personal identity, and make “it” better for everyone. Notes: [1] Carolyn E. Coffey, Celebrating Student Scholarship: Battling Gender Orthodoxy: Prohibiting Discrimination on the Basis of Gender Identity and Expression in the Courts and in the Legislatures, 7 N.Y. CITY L. REV. 161, 161 (2004). [2] David C. Yamada, Crafting a Legislative Response to Workplace Bullying, 8 EMPLOYEE RTS. & EMP. POL’Y J. 475, 517 (2004).