Appeals court revives trans employee's Title VII harassment lawsuit in Georgia

A 3-0 decision from the Eleventh Circuit criticizes a district court that rejected a transgender man's claim. Also: New Law Dork paid subscriber features!

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Now, on to the news …

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Hostile work environment — and a hostile district court

The U.S. Court of Appeals for the Eleventh Circuit on Thursday ruled that Tyler Copeland could pursue his lawsuit against the Georgia Department of Corrections in the wake of the repeated harassment that he received from “supervisors, subordinates, and peers alike“ after he informed his workplace that he was transgender and would begin coming to work as Tyler.

In his lawsuit, Copeland alleged that he faced a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. In late 2022, U.S. District Judge J. Randal Hall, a George W. Bush appointee, sided with the Georgia Department of Corrections, finding that Copeland did not show that “the harassing conduct was sufficiently severe or pervasive to alter the terms or conditions of his employment,” as is required under a hostile work environment claim.

On Thursday, a unanimous three-judge appeals court panel vacated Hall’s decision on that claim, with some harsh words about Hall’s treatment of the case — and a strong affirmation of protections that transgender employees have under Title VII, including when they are repeatedly misgendered.

“[D]iscrimination against transgender individuals like Copeland is discrimination ‘because of sex’” under Title VII, Judge Jill Pryor wrote for the court, citing to the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. Here, the appeals court applied that ruling — which addressed an employee who was fired — to a hostile work environment claim. Pryor was joined on the panel and in her opinion by Judges Charles Wilson, a Clinton appointee, and Andrew Brasher, a Trump appointee.

As an Eleventh Circuit decision, this ruling is particularly significant given that it is precedent for all federal cases brought in Alabama, Florida and Georgia.

“The district court erred when it concluded—on the summary judgment record—that Copeland had not suffered severe or pervasive harassment,” Pryor wrote.

In seeking summary judgment, a party — here, Georgia Department of Corrections (GDOC) — argues that even if the facts are viewed in the best light for the opposing party — here, Copeland — they should still win on the law. As to that request, Hall sided with GDOC, and Copeland appealed. Notably, and as pointed out in Pryor’s opinion, the Justice Department under the Biden administration weighed in in the case, siding with Copeland. “We agree with Copeland and the United States,” she wrote for the court.

From the start, Pryor made clear that the panel viewed the district court as having gotten the case very wrong. “Much of this harassment was remarkably unconcealed,” Pryor wrote of the experience Copeland faced at work after coming out.

Citing Copeland’s description of how he was harassed on a prison-wide radio system accessible to every employee, Pryor explained:

After the meeting [in which Copeland’s co-workers were informed of his transition], Copeland’s coworkers would finish their radio transmissions to him by calling him “ma’am,” such that “the whole institution [could] hear it.” … These comments occurred “[o]n a daily basis”—three or four times each day —and came from Copeland’s “[s]ubordinates” and “supervisors” alike.

This misgendering harassment was not isolated to the radio, either, and prison officials knew it was going on, with potentially serious ramifications for prison security.

Often, and contrary to [HR]’s directive at the staff meeting that staff refer to Copeland as Sergeant Copeland or use male pronouns, Copeland’s supervisors called him “ma’am.” They also commented on his gender in front of subordinates. Inmates joined in, “mak[ing] inappropriate comments” to Copeland about his gender identity. … All told, Copeland identified 34 coworkers who participated in harassing him.

There was much more detailed by Pryor, including an incident where another officer “‘circled . . . around’ him in an ‘armed perimeter vehicle’ while carrying a pistol” as Copeland walked to his car. As Pryor wrote of that incident: ”Copeland feared for his life.”

And yet, when the district court had considered this evidence, Hall concluded in part, “Although the Court finds Plaintiff's co-workers and supervisors were rude in their statements and treatment of his transition, the actions fall short of conduct so severe it alters Plaintiffs working conditions.”

Significantly, Hall had discounted the radio harassment altogether as “conclusory,” instead only considering 17 incidents that Hall decided were appropriately detailed. The appeals court specifically corrected Hall on that point, which expanded into a broader criticism of the district court’s consideration of the case.

“We have cautioned district courts against discounting testimony in this way at the summary judgment stage,” Pryor wrote, citing to multiple Eleventh Circuit decisions explaining how courts are to review such evidence at this stage.

She went on to explain why Copeland had handled the radio harassment as he did and how Hall had handled matters incorrectly: “[Copeland] testified that he ‘did not include’ the radio harassment in the list because it was ‘constant’ and documenting it would have been ‘tedious.’ … By discounting Copeland’s testimony about the frequency of the harassment he faced, the district court improperly denied him the benefit of his evidence at the summary judgment stage.” Pryor wrote that the appeals court, in contrast, “easily conclude[d]” that a jury could side with Copeland and “find that the harassment [he] faced was frequent.”

The appeals court reached a similar conclusion as to Hall’s ruling that the harassment was not severe — a conclusion, Pryor noted, that Hall made “largely without explanation.”

Instead, the appeals court noted that harassment is viewed by courts as more severe when it occurs over the objections of the employee and when supervisors participate. In one particularly striking footnote describing how Copeland was “stymied” in efforts to stop harassment by his subordinates, Pryor noted that “supervisors modeled the harassing behavior in which subordinates engaged,” adding, “We will not overlook harassment by subordinates when supervisors have a hand in modeling and perpetuating that harassment.“ The severity of harassment also, she wrote, must be considered in light of the “social context” — here, “while working as a correctional officer.” On all of these points, Pryor wrote, a jury could conclude that the harassment against Copeland was severe.

The court went on to find that a jury could also find that the harassment Copeland faced was both physically threatening and humiliating and that it negatively affected his job performance.

On all of the factors that are to be considered when deciding whether harassment is “severe or pervasive” sufficient for a hostile work environment claim, the appeals court believed that Copeland could make his case.

As the court summed the matter up, it painted a stark picture:

According to Copeland’s evidence, accepted as true at summary judgment, each day, when he reported to work, his supervisors, subordinates, and peers publicly humiliated him because his gender identity differs from the sex he was assigned at birth. They did so notwithstanding his complaints to every level of prison leadership. Title VII does not countenance such behavior.

Despite all that, the case is not done. It now goes back to Hall for further proceedings, including to resolve whether Copeland can show that ”GDOC was ‘responsible for the hostile work environment.”

This is a significant appeals court decision in the South that affirms and explains workplace protections for transgender employees, specifying how they can and do apply in a hostile work environment claim and making clear that repeatedly misgendering a transgender employee is a part of that consideration. And yet, for Copeland, whose harassment began in September 2018, his case is still not resolved — and, particularly if there are further appeals, could have years to go.