Profanity and prejudice: using gendered derogatory language towards a trans woman can amount to direct discrimination
In Fischer v London United Busways Limited, a tribunal had to decide if a trans woman who said she had been called a swear word typically directed at men had been subjected to direct discrimination because of their gender reassignment.
Ms Fischer is a trans woman. She was supplied by an employment agency to drive buses for a London bus company (Busways) and worked there for three months until Busways terminated her engagement.
She brought a number of claims against Busways for direct discrimination including an allegation that another bus driver had called her a ‘w*nker’. She argued that this swearword was gendered in the sense that it was usually directed at men and had been used to insult her because she was a trans woman. She alleged that this was less favourable treatment because of her gender reassignment and that Busways was vicariously liable for it, as it had occurred during the course of the other bus driver's employment.
Busways argued that the incident hadn't happened and, that even if it had, it was not vicariously liable because it had taken all reasonable steps to prevent its staff from discriminating against other people.
The Equality Act 2010 protects transgender employees from all forms of discrimination. Gender reassignment applies to people who are planning to undergo, are undergoing, or have undergone a process of reassigning their sex. This is by changing their physiological or other attributes of sex. It’s a personal process, and the person doesn’t need to have had surgery, be taking hormones or be under medical supervision. They do not need to have a Gender Recognition Certificate.
In terms of vicarious liability, anything done by an employee in the course of their employment is treated as having also been done by the employer and, in the context of discrimination claims, it will only avoid liability if it can show that it took ‘all reasonable steps’ to prevent its employee committing a particular discriminatory act.
Finally, agency workers are protected from discrimination by the organisation they provide work to (referred to in the Equality Act as ‘principles’).
The Tribunal considered the word was not a gender-neutral insult. It was directed at men and that equivalent, but different, terms for women existed. It said that calling a trans woman by this swearword, would be sufficient to establish a prima facie case of gender reassignment discrimination.
However, the tribunal did not believe that Ms Fischer had been insulted in this way and dismissed her claim. This was because there were competing witness accounts about what had happened and the tribunal did not consider that her testimony was reliable on this point.
Although Ms Fischer's discrimination claims failed, the tribunal nevertheless decided to consider whether Busways would have been able to establish that it had taken all reasonable steps to prevent discrimination. Busways pointed to its equal opportunities and harassment policies, said that it had a ‘zero tolerance’ approach to enforcement of those policies and that they were referred to during induction and sent to agency staff. It also said that it encouraged staff to raise concerns and that line managers reinforced this message.
The tribunal said that Busways could have done more to prevent discrimination and would not have been able to rely on the statutory defence had Ms Fischer succeed with her claims. Specifically, it found that:
- The policies had not been reviewed since 2007 and did not refer to the Equality Act.
- Busways used a significant number of agency workers and its policies should have made it clear that they applied to agency staff as well as to employees and job applicants.
- Focussing on equality was insufficient and Busways should have addressed inclusion of people with diverse characteristics.
- The polices were available on notice boards but staff spent little time in the depot where they were displayed. Busways should have put in place better communication and made sure that staff were provided with refresher training.
- An organisation the size of Busways should have had employee representative groups so that minority groups could feed in ideas for improvement.
- Line managers should understand the value of inclusive language - and know the correct terms to use when dealing with trans people.
The tribunal said: ‘We consider these steps would make a marked difference to the experience of all the Respondent’s workforce – they are not unreasonable to take when considering the relatively limited time, trouble and expense they might be expected to involve measured against the marked positive impact that might be anticipated from taking them.’
Should employers operate a zero-tolerance approach to swearing?
This case demonstrates that a tribunal may find that the use of gendered swearwords can, depending on the facts, amount to sex or gender reassignment discrimination. Although the tribunal declined to provide a list of gendered swearwords, another example might be the word ‘bitch’ which is usually directed at women.
Earlier this year, YouGov asked over 3,000 people ‘how often, if ever, do you swear’. Fifty-seven percent said that they swore often or fairly often and only six percent said that they never swore. This suggests that swearing is now commonplace in society.
But just because lots of people swear, it doesn't mean that employers have to put up with it in their workplaces. Most employers would take a very dim view of staff swearing at clients or members of the public they come into contact with but may be (more) relaxed about other forms of swearing, or particular swearwords. There is also a qualitative difference between an employee who swears in frustration when something goes wrong at work and one who uses swearwords to insult and demean others. Many employers would overlook swearing in the first example but would want to take action to tackle it in the second.
That said, there isn't a one size fits all approach and employers will have decide what is appropriate in their organisation. Where the issue of swearing has resulted in employment claims, tribunals will consider the particular work environment. In the past, they have made it clear that what is acceptable on a construction site or garage may be unacceptable in an office. But as societal norms change, what is acceptable may change too. For example, in 2020, a tribunal judge said that the word 'f*ck' did 'not carry the shock value [it] might have done in another time’ when it was used in a sales environment.
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