Are Gendered Swear Words Discriminatory?

Gender reassignment is one of the nine protected characteristics under the Equality Act, and applies to any person proposing to undergo, undergoing, or who has undergone a process (or part of a process) for the purpose of reassigning their sex, by changing physiological or other attributes of sex. Direct gender reassignment discrimination occurs where, because of gender reassignment, a person treats another less favourably than they treat or would treat others.

Under the Equality Act, anything done by an employee in the course of their employment is treated as also having been done by their employer, regardless of whether the acts were done with the employer’s knowledge or approval. As such, an employer can be vicariously liable for their employee’s discriminatory acts. The employer can avoid this liability if they can show that they took all reasonable steps to prevent the employee committing the particular discriminatory act, or to prevent that type of discriminatory act.

In Fischer v London United Busways Ltd, Miss Fischer, a trans woman, was engaged as an agency worker by London United Busways Ltd (LUB). After LUB terminated her engagement, Miss Fischer brought a claim of direct gender reassignment discrimination. One of the alleged incidents forming part of her claim involved a colleague calling her a “w*nker” (hereafter, the Incident). Miss Fischer argued that this was less favourable treatment because of her gender reassignment, and that LUB was vicariously liable. LUB denied that the Incident had occurred, but added that, even if it had, they were not vicariously liable because they had taken all reasonable steps to prevent it.

The Employment Tribunal found that the Incident had not occurred, and therefore Miss Fischer’s claim could not succeed on this allegation. However, the Tribunal did confirm that, had the Incident occurred as described, then this would have been enough to form the basis of a gender reassignment discrimination claim. The Tribunal stated that, in the experience of the panel’s members, the swear word in question was predominantly used against men, rather than women, and it was therefore a “gendered” swear word. It follows, therefore, that the alleged use of this word against Miss Fischer could have been seen as discriminatory, in that the colleague was deliberately misgendering her by using a “masculine” swear word against her.

Despite dismissing Miss Fischer’s discrimination claims, the Tribunal still chose to consider whether LUB could have relied on the “all reasonable steps” defence. It was acknowledged that LUB had taken some steps to prevent gender reassignment discrimination, including:

• Having equal opportunities and harassment policies, which were part of the induction process.
• Taking a zero-tolerance approach to the enforcement of these policies.
• Encouraging staff to report any concerns.
• Investigating all of Miss Fischer’s complaints.

However, the Tribunal also found that there were additional steps which LUB could have taken, such as:

• Keeping its policies up to date – LUB’s policies were last updated in 2007.
• Making clear that its equal opportunities policy applied to agency workers such as Miss Fischer.
• Putting more of a focus on “inclusion” in its equal opportunities policy – the Tribunal noted that Miss Fischer did not feel “wanted” at LUB.
• Making policies readily available to staff and ensuring that they were understood – for example, attaching policies to digital payslips and/or having regular refresher training.
• Setting up employee representative groups, such as an LGBTQ+ group.
• Raising awareness of equal opportunities generally, but especially transgender awareness – the Tribunal noted that one of LUB’s witnesses had a poor understanding of trans-inclusive terminology.

The Tribunal held that these were all reasonable steps that LUB could have taken, with relatively low time and financial cost involved.

Although Miss Fischer’s claims failed, there are still some important lessons to be learned from this case. The extent of the reasonable steps that LUB could have taken, in the view of the Tribunal, reiterates how generous tribunals tend to be in interpreting what steps are “reasonable” for an employer to take. Policies and processes should be reviewed regularly to ensure that they promote an inclusive work environment and are up to date with current legislation and practices. In addition, employers should look to take proactive steps to create a culture of equality and inclusivity, whether that is through regular refresher training, the dissemination of equal opportunities information in a manner that is easily accessible to staff, or by setting up employee representative groups.

Perhaps the more interesting aspect of this case, however, is the discussion regarding gendered swear words. The Tribunal’s comments strongly suggest that the use of “masculine” swear words against a trans woman are likely to be discriminatory – it follows that the same would the case for the use of “feminine” swear words against a trans man. Of course, we would not ordinarily recommend calling any staff members rude words of any kind – but HR personnel may want to have particular regard to this case when dealing with any similar allegations.

The Tribunal’s comments also raise some further questions regarding gendered swear words. Had the Incident occurred as alleged, then the argument that it might have been discriminatory rests on the assumption that the colleague was deliberately misgendering Miss Fischer, and that this was the less favourable treatment forming the basis of a direct discrimination claim. But what would be the position if a cis female were called a “feminine” swear word by a colleague? Might there also be an argument of discrimination in such circumstances, because the use of a “feminine” swear word in of itself indicates less favourable treatment because of the employee’s sex? There are of course some words that are racially charged and that would undoubtedly form the basis of a race discrimination claim – but it will be interesting to see whether a similar approach might be taken by the tribunals in relation to “gendered” swear words and sex discrimination.

If you have not had your equal opportunities policy updated in the last two years or are concerned that it doesn’t expressly cover agency workers then please do get in touch for us to undertake a free initial review at [email protected].