Are Transgender Employees Protected From Hostile Work Environment Harassment?

Having fought for the rights of employment discrimination victims for more than twenty years, our employment discrimination lawyers in Marion County, Florida have learned that changes in employment discrimination law do not immediately curtail long-standing discriminatory employment practices. For decades, federal courts uniformly held that employment discrimination law does not protect employees from discrimination on the basis of sexual orientation or transgender status. Consequently, employees endured decades of egregious discrimination on the basis of their sexual orientation or transgender status without any protection from federal employment discrimination law.

In its landmark decision in 2020, the U.S. Supreme Court in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) overruled decades of federal court precedent and ruled that discrimination against employees on the basis of sexual orientation or transgender status is a form of unlawful discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Despite the protection afforded by the Supreme Court’s landmark decision in Bostock, employees continue to endure discrimination on the basis of their sexual orientation or transgender status. In this article, our employment discrimination lawyers in Marion County, Florida explain how the alleged facts in T.D.H. v. Kazi Foods of New Jersey, Inc., 2023 WL 4567722 (E.D. Pa. July 17, 2023) are illustrative of how changes in employment discrimination law do not immediately eradicate long-standing discriminatory employment practices.

Protection From Transgender Harassment

Title VII prohibits employers from discriminating against employees on the basis of sex. Under well-established law, sexual harassment is a form of sex discrimination forbidden by Title VII. In interpreting the scope of the Bostock Court’s ruling, federal courts have determined that harassment on the basis of sexual orientation or transgender status is a form of sex discrimination prohibited by Title VII. In other words, just as sexual harassment is a form of sex discrimination prohibited by Title VII, harassment on the basis of sexual orientation or transgender status is a form of sex discrimination forbidden by Title VII. To violate Title VII, harassment on the basis of sexual orientation or transgender status must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment.

Transgender Harassment Lawsuit

In Kazi Foods, an employee named Henderson brought an employment discrimination lawsuit against her former employer, Kazi Foods of New Jersey, Inc. (“Kazi Foods”). Kazi Foods is a franchisee that owns and operates multiple Kentucky Fried Chicken (“KFC”) restaurants. Henderson, who is a transgender female, alleges that she was subjected to hostile work environment harassment because of her transgender status in violation of Title VII.

Henderson was interviewed by a general manager, Rivera, for a job working at a KFC owned by Kazi Foods. During the interview, Henderson informed Rivera that “she is transgender, and her preferred name is Tiffany.” Rivera assured Henderson that there would be no issues with her gender identity. Nevertheless, Henderson alleges that she was subjected to harassment because of her transgender status. For example, Henderson claims that Rivera asked her “do you go by he or she” in front of customers. Henderson also alleges that a co-worker called her a transvestite and a man, and that other employees falsely told her that food was free for employees, when in fact taking food without paying was grounds for termination.

Henderson asserts that she complained about the alleged harassment to Rivera and to KFC’s corporate customer support number. Henderson contends that Rivera informed her that she could either be terminated or transferred to another KFC store. Henderson elected to transfer to another KFC store.

Henderson maintains that the harassment continued at the new KFC store. The female general manager at the new store, Garcia, allegedly told Henderson that she was “so sexy” and “beautiful,” and had a “very sexy voice.” Henderson also claims that Garcia made comments about her rear, asked her sexually charged questions, and on one occasion took her phone and remarked that she was searching for naked photographs of Henderson. Henderson further claims that Garcia touched her rear and intentionally pushed her breasts against Henderson’s body and that Garcia once touched Henderson’s breasts, commenting “I thought you didn’t have any.”

Henderson contends that she again reported the alleged harassment to KFC’s corporate customer service number. After her complaint, Henderson alleges that she was notified by Kazi Foods’ Director of Risk Management, Morgan, that she was suspended pending an investigation into her allegations. Henderson asserts that Morgan also asked her if she wanted to be transferred to a different KFC store and that she requested a transfer to another KFC store.

Morgan concluded his investigation by determining that there was insufficient evidence to prove or disprove the allegations and that Henderson would be able to return to work as soon as her transfer to another store was complete. Henderson claims that the alleged transfer “never came.” Instead, according to Henderson, Kazi Foods terminated her employment.

Transgender Harassment Is Unlawful

Kazi Foods filed a motion with the trial court seeking the dismissal of Henderson’s hostile work environment harassment claim. In moving for dismissal, Kazi Foods argued that Henderson’s allegations did not establish that she worked in a hostile environment based on her transgender status because the alleged conduct amounted to nothing more than “simple teasing, offhand comments, and isolated incidents.” The trial court rejected Kazi Foods’ argument and ruled that Henderson’s allegations were sufficient to establish that she was harassed because of her transgender status in violation of Title VII. In support of its ruling, the trial court observed that Henderson alleges that she was called a transvestite and was asked her preferred pronouns in front of customers. The trial court also pointed out that Henderson claims that she was subjected to explicitly sexual conduct, including sexual remarks, physical touching, and looking through her phone for naked pictures. This “alleged conduct,” the trial court concluded, “goes bar beyond” allegations of “simple teasing or offhand comments.”

Marion County, FL Discrimination Lawyers

Based in Ocala, Florida, and representing workers throughout Florida, our employment discrimination attorneys in Marion County, Florida have dedicated their practice to fighting for the rights of employment discrimination victims. If you have been discriminated against on the basis of transgender status or have questions about your LGBTQ employee rights, please contact our office for a free consultation with our employment discrimination lawyers in Marion County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.