The employee, referred to in the federal lawsuit as Danielle, worked for two weeks. She claimed that during her brief employment, she was called “tranny,” repeatedly asked if she had male genitalia, and referred to as “Daniel” and by male pronouns by her coworkers.
She asked her coworkers to stop multiple times, but they didn’t, the lawsuit says. “One of the employees responded by saying, ‘I don’t know what the big deal is because you’re a tranny … you must be used to this by now,’” the lawsuit says.
She told the general manager about the harassment “at least” three times, but nothing was done, said the EEOC in the legal action.
A co-worker complained about the harassment to the area director, who met with the general manager four days later, the lawsuit says. Danielle was fired later that day “in retaliation for engaging in protected activity, namely opposing sex harassment,” the lawsuit says.
A transgender employee recently claimed that she was harassed and mocked by coworkers before she was fired because of her sex. She claimed that employees repeatedly stood in groups gawking, laughing and pointing at her and made crude disparaging remarks about her being transgender.
The employee filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), which found reasonable cause that the employer violated Title VII of the Civil Rights Act for sex discrimination. When the employer failed to settle the matter in the way that the EEOC wanted, the EEOC sued the employer on behalf of the transgender employee.
Calling a transgender employee by wrong pronoun?
The company recently agreed to settle the sex discrimination lawsuit and will pay the former employee $100,000. As part of the settlement, the company must revise and redistribute an anti-harassment policy and provide training to all employees. The new policy must specifically tell employees that they are entitled to make complaints or reports of unlawful employment discrimination to the EEOC! EEOC v. Apple-Metro, Inc. and Hawthorne Apple, LLC, Civil Action No. 1:17-CV-04333.
Additionally, any complaints of sex-based discrimination or retaliation made by employees of the jobsite will be reported to the EEOC.
The training that the business must do is required to be live training and must include the following elements:
- It will describe or portray real-world examples of conduct that is unacceptable in the workplace, including examples involving harassment based on race, sex, religion, and/or national origin, and at least one example specifically related to comments or treatment that would be offensive to a transgender individual ;
- It will be interactive, providing participants opportunities both to answer and ask questions about how to recognize and respond to potentially problematic behavior;
- It will explain the avenues available for reporting incidents of harassment or discrimination, and affirm that individuals who make complaints or reports will not be subjected to any form of retaliation or reprisal; that all complaints and reports will receive a fair and thorough investigation, and that complaining employees will receive timely notice of the investigation's findings and conclusions ; that the employer will take prompt and appropriate corrective action to remedy harassment and discrimination at its restaurants;
- that the employer will keep complaints and reports and the identities of employees who make them confidential to the extent practicable; and
- It will encourage bystander reporting, that is, it will convey that all individuals in the workplace are encouraged (and, for supervisors and managers, required) to take action if they observe any problematic behavior, and it will explain how they can do so. This last component is a new element that the EEOC has been claiming should be part of an employer’s harassment training.
Also, the company must post a Notice of Lawsuit and Settlement in locations visually accessible to and commonly frequented by its employees! What is worse than posting this notice, is that it instructs employees that if they have a complaint of discrimination they may contact the EEOC and it provides the EEOC’s phone number and website. Further, this notice must remain posted for a whopping two years!
This recent case should be a wake-up call for Florida employers. Although there is an argument that federal law does not protect transgender status, it is a developing area of the law and the EEOC will aggressively pursue these claims.
An EEOC spokesperson warned business owners that it is far better for a company to take reports of harassment seriously and address problematic conduct before it becomes a lawsuit. “Retaliating against the employee who reported the problem is illegal, and the EEOC takes such violations quite seriously.”
This employee worked for only two weeks and the employer paid $100,000 to settle this lawsuit, in addition to tens of thousands of dollars to its own lawyers.
If your Florida company would like assistance in training its managers on civility, discrimination and harassment, please email our firm or call us at 1-772-465-5111.
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