Labor & Employment Law Daily Transgender fast food worker whose supervisor asked him about his genitalia loses harassment claim
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Monday, August 3, 2020

Transgender fast food worker whose supervisor asked him about his genitalia loses harassment claim

By Brandi O. Brown, J.D.

Although he alleged that the supervisor asked him if he had a “d**k” or “titties,” and his coworkers referred to him as “he-she,” he failed to establish frequency or that the alleged harassment interfered with his job performance.

A federal district court in Georgia dismissed the hostile work environment claim of a transgender worker who alleged that soon after he was hired, his supervisor asked him about his genitalia and ability to give birth and that his co-workers referred to him as “he-she.” Although his allegations, if given “the benefit of the doubt,” were sufficient to establish severity but not frequency, he failed to allege that they interfered with his job performance. However, his claim of retaliation based on increased scrutiny of his work following his first-day complaint will proceed (Barreth v. Reyes 1, Inc. dba Little Caesars Pizza, July 29, 2020, Self, T., III).

Hired, asked about genitalia. When the plaintiff went in to complete his onboarding paperwork after being hired via telephone by Little Caesars, he learned that the employer would complete a background check. He warned the store manager that his background check would identify him as a female, although he had transitioned from female to male in 2013. When he arrived for his first day of training, he was referred to as “she” by a co-worker.

Later his direct supervisor directed several questions and comments towards him, prefacing them by saying she did not want him to “be offended.” She asked him if he had a “d**k,” if he had “titties,” if they had been removed, and whether he was on hormones. She also asked, “you probably can’t have kids, can you?” He then called the store manager to tell her about the conversation and learned that the store manager had discussed his “situation with everyone” and “that ‘everyone’ knew what was going on.” He alleged that she never provided any disciplinary action to the supervisor and never followed up.

Backlash from complaint. After his complaint, he alleged, the questioning supervisor more closely scrutinized his work, gave him additional tasks, blamed him for things that were not his fault or responsibility, and threatened him with write-ups. Otherwise she refused to interact with him. His coworkers referred to him frequently as a “he-she” and made disparaging comments to and about him regarding his gender identity. Within a month of his hire he resigned. He later filed suit and the restaurant moved to dismiss.

HWE claim out. Although the employer conceded that the employee belonged to a protected group in light of Bostock v. Clayton Cty. and that he was subjected to unwelcome harassment “on account of” his sex, it argued that his allegations did not make out a prima facie case of a hostile work environment. The restaurant argued that his claims failed because the alleged conduct was not sufficiently severe or pervasive that it had altered the terms and conditions of his employment. The court agreed. Reviewing the allegations under the Eleventh Circuit’s decision in Miller v. Kenworth of Dothan, Inc., the court found them lacking with regards to answering the question whether the workplace was “permeated with discriminatory intimidation, ridicule, and insult.” Frequency and interference with job performance were not demonstrated by the complaint’s allegations, reasoned the court.

Supervisor’s comments. The employee alleged four instances of harassment, including being referred to as “she,” the questions from his supervisor, the scrutiny of his work following his report to the store manager, and that his coworkers and supervisors made disparaging and inappropriate comments to or about him, including calling him a “he-she.” With regards to the questions and comments by the supervisor, the employer argued that he failed to allege in his complaint that they were disparaging to his status as a transgender male or that they reflected bias or hostility. He alleged only that she “asked” him offensive questions but did not include anything in the complaint about how or why she asked the questions. He also did not allege that she intended her questions to be demeaning, that she asked them to be hurtful or hostile, or that she thought negatively of his transgender status. There was nothing, the court explained, that “set the stage” for the idea that the questions were intended to “malicious[ly] harass[]” him.

Frequency unknown. More specifically, with regards to frequency, the court found that the employee failed to include any indication of the frequency with his the “he-she” comments were made or who made them. He failed to “provide clean, easy-to-understand date approximations to paint a detailed picture” of the timeline. Rather he “merely tossed in” the assertion that the “he-she” comment and other disparaging comments were made “frequently.”

Even though the case law did not demand descriptions of daily incidents, the court found that the employee should have included more than a “naked assertion” of “similar disparaging comments.” Without it, the detail of the “he-she” comment did not meet the pleading requirements. The court concluded that he was able to clear the “low hurdle” for severity and sufficiently alleged humiliation, but he failed to identify how the alleged harassment interfered with his job performance. He never alleged that he couldn’t perform his job.

Retaliation claim. Although his hostile work environment claim was dismissed, his retaliation claim remained viable in part. He alleged that he reported harassment, conduct that made him feel “offended and extremely uncomfortable.” He also alleged that he experienced “increased harassment and scrutiny of his work [and] offensive and inappropriate comments.” Therefore, the court denied the motion to dismiss his retaliation claim. But it dismissed his constructive discharge claim.

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