Discrimination in the workplace occurs with frequency in the New York metropolitan area and surrounding counties. Laws exist to give employees the ability to file claims against employers who violate their rights. Workers may file claims under federal or local laws, depending on which best protects them. When it comes to sex discrimination and harassment against transgender employees, the New York City Human Rights Law (NYCHRL) may provide the basis for a successful case. Employment lawyers can help you determine the best way to proceed if you are experiencing workplace discrimination.
On November 10, 2016, fired employee Chyanne Smith filed a lawsuit against TJ Maxx alleging that she experienced workplace harassment and discriminatory retaliation because she is transgender. Smith filed her suit in the Southern District of New York under the NYCHRL. (Smith v. The TJX Cos., S.D.N.Y., No. 1:16-cv-08755)
Title VII of the Civil Rights Act of 1964 (Title VII), a federal statute, prohibits employment discrimination and retaliation based on sex, race, religion, color and national origin. Amendments to Title VII prohibit discrimination based on age if a person is over 40, disability, and pregnancy. No specific language in Title VII prohibits discrimination or harassment of employees because of their sexual orientation or gender identity. The Equal Employment Opportunity Commission (EEOC), the federal agency that oversees the enforcement of Title VII, takes the position that the prohibition of discrimination based on “sex” protects transgender individuals. However, courts appear to be divided on the issue.
Some states and localities have begun passing employment discrimination laws and regulations that are more comprehensive than Title VII. NYC is one of few cities across the nation that has adopted a law that includes language to specifically protect employees from discrimination and harassment in the workplace based on their gender identity, gender expression or status as transgender.
The New York City Human Rights Commission (NYCHRC) offers legislative guidance indicating that the following actions, among others, may be unlawful under NYCHRL:
In her complaint, Smith alleges that immediately upon beginning work as a supervisor at a Manhattan TJ Maxx store, her co-workers refused to refer to her using feminine pronouns. As Bloomberg BNA reports, Smith’s complaint states that employees directed “transphobic slurs” such as “he-she” and “shim” at her. Allegedly, Smith also experienced harassment when she used the restroom with one co-worker making reference to ambiguity about her private parts.
According to the complaint, Smith reported the conduct to the store’s managers to no avail. They fired her just over a week after she began. Smith asserts that the termination was in direct retaliation for her complaints although she alleges the managers told her it was because she falsified records relevant to her “pre-employment background check.” Smith stands firm that this reason they provided is nothing more than an attempt to cover up the discrimination and retaliation.
Smith filed her case under NYCHRL, arguably, because it specifically protects employees from discrimination, harassment, and retaliation based on gender identity. The purposeful misuse of pronouns, as well as the use of slurs, are clearly forbidden.
It will be up to the court to determine if Smith lost her job in retaliation for complaining to management about the treatment she was receiving and whether or not the actions of her co-workers violated NYCHRL. But it is clear that the intention of the NYC law is to provide specific protection for transgender individuals that is missing from the language of Title VII. As more and more cases like Smith’s find their way into courtrooms across the country, and judges consider the meaning of “sex” under Title VII, perhaps transgender employees will receive a wider umbrella of protection.
Leeds Brown Law, P.C. is a full-service employment law firm that handles sex harassment and gender discrimination claims in New York City and surrounding areas. Our experienced attorneys are available to take your call 24/7 if you have questions or need assistance with a workplace discrimination complaint. Contact us at 1-800-585-4658.