Are Transgender Employees Protected From Being Fired Because Of Their Transgender Status?

For more than twenty years, our Marion County, Florida sexual orientation discrimination lawyers have litigated cases in Florida courts against employers who have subjected their employees to unlawful discriminatory employment practices. In its landmark decision in Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the U.S. Supreme Court overturned decades of federal court decisions authorizing discrimination against employees on the basis of sexual orientation or transgender status. In Bostock, the Supreme Court determined that discrimination against employees on the basis of sexual orientation or transgender status constitutes unlawful discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII). In this article, our Ocala, Florida sexual orientation discrimination lawyers explain how the recent decision by the U.S. District Court for the District of Maryland in Membreno v. Atlanta Restaurant Partners, LLC, Case No. 19-cv-00369 (D. Md. Feb. 5, 2021) demonstrates that the Supreme Court’s decision in Bostock prohibits employers from terminating transgender employees on the basis of their transgender status.

Transgender Worker Claims Discriminatory Discharge

In that case, Membreno, who is a transgender woman, brought a sex discrimination claim against her former employer, Atlanta Restaurant Partners, LLC (ARP), pursuant to Title VII. Membreno claims that she was unlawfully fired because of her transgender status in violation of Title VII. In 2007, Membreno was hired as a cook at a TGI Friday’s (Friday’s) restaurant. The Friday’s where Membreno worked was owned and operated by ARP. When Membreno first applied to work at Friday’s in 2007, she was known as “Diana,” but her legal first name was Jose. She presented herself to the world as a woman throughout her employment at Friday’s.

Membreno contends that for the lion’s share of her time at Friday’s she was harassed because of her transgender status. Membreno alleges that the restaurant’s General Manager, Headen, consistently abused her because of her transgender status. Headen refused to allow Membreno to use the women’s restroom and berated her when she did so. Headen also regularly “outed” Membreno as transgender to other employees, and refused to call her “Diana,” instead referred to her as “Jose” and using male pronouns. In one incident, Headen went so far as to “correct” Membreno’s brother, who also worked at Friday’s, telling him that Membreno was his brother and not his sister. Headen also purposefully referred to Membreno as “Jose” when publishing the work schedules.

Transgender Worker Treated Less Favorably

On December 21, 2016, Membreno texted the Kitchen Manager informing him that she would not be able to work her scheduled shift on Christmas Eve. The Kitchen Manager, in response, asked Membreno who would cover her shift. According to Membreno, she had never been asked to find her own replacement, so she sought guidance from another supervisor. The other supervisor confirmed Membreno’s understanding, leaving her with the impression that she followed proper procedure and was not required to find a replacement. Membreno did not go to work on Christmas Eve. ARP, claiming that she violated the company’s “no call/no show” policy, fired Membreno because of her failure to report to work or secure a replacement.

Membreno and other employees testified that ARP maintained a very different policy and practice. They confirmed that time off was requested by either speaking to or texting a manager, as Membreno had done for her Christmas Eve shift. Once an employee notified the manager, a supervisor—not the employee—would find a replacement and ensure the shift was covered. Membreno also presented evidence that other non-transgender employees who missed a shift without permission were merely reprimanded and not fired.

Evidence Of Discriminatory Discharge

ARP filed a motion with the trial court seeking dismissal of Membreno’s claim that she was the victim of a discriminatory discharge in violation of Title VII. In support of its motion, ARP argued that the evidence showed that Membreno was fired based on a legitimate, non-discriminatory reason and not based on her transgender status. The trial court denied ARP’s motion for dismissal.

The trial court found that Membreno had presented sufficient evidence to establish that ARP’s asserted explanation for her discharge was a “pretext” for firing Membreno “on account of her transgender status.” In support of its finding, the trial court pointed out that “few employees followed” the alleged “no call/no show” policy that ARP relied on as justification for Membreno’s termination. In further support of its finding, the trial court noted that Membreno “had demonstrated that other non-transgender employees who similarly missed a shift without permission had been reprimanded, not terminated.” Based on this evidence, the trial court concluded, Membreno was entitled to proceed to a jury trial on the issue of whether she was unlawfully terminated because of her transgender status in violation of Title VII.

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Ocala, FL Sexual Orientation Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida sexual orientation discrimination attorneys fought for the rights of employment discrimination victims for more than twenty years. If you have experienced discrimination on the basis of transgender status or have questions about your protection from discrimination on the basis of transgender status under federal employment discrimination law, please contact our office for a free consultation with our Ocala, Florida sexual orientation discrimination lawyers.