New York pizzeria failed to put a stop to misgendering, EEOC alleges

Dive Brief:

A New York restaurant, T.C. Wheelers Bar & Pizzeria, failed to stop managers and other employees from misgendering a transgender co-worker, in violation of federal law, the U.S. Equal Employment Opportunity Commission alleged in a March 30 lawsuit (EEOC v. T.C. Wheelers, Inc. d/b/a T.C. Wheelers Bar & Pizzeria, No. 1:23-cv-00286 (W.D.N.Y. March 30, 2023)).
The harassment began with the company’s owners, the EEOC said in announcing the litigation. One owner asked invasive questions and both intentionally misgendered the employee, the commission alleged — “and stood by as employees and customers did the same.”
The employee, a cook, complained repeatedly about the conduct. The company failed to address the “almost daily” harassment, EEOC said, leading him to resign.

Dive Insight:

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of sex, EEOC said, and “harassment based upon gender identity is a form of sex discrimination prohibited by the statute.” This interpretation was affirmed by the Supreme Court’s Bostock v. Clayton County decision in June 2020.

Employers have a responsibility to protect employees from discrimination and harassment based on gender identity, Timothy Riera, EEOC’s New York acting district director, added. “Employers should handle complaints of harassment seriously and take measures to prevent such abuse,” Riera said in the lawsuit announcement. “If they fail to do so, the EEOC stands at the ready to enforce federal law.” Employment law attorneys often recommend HR train front-line managers to spot and stop such harassment.

The commission’s stance in this most recent lawsuit isn’t a new one; the agency has previously taken the position that intentional misgendering is sex-based harassment and that employers can be held liable for failing to stop it.

Notably, however, HR pros have said an EEOC report requires them to misgender nonbinary workers. Employers with 100 or more employees must file the commission’s EEO-1 report annually and must report how many men and women make up their workforces. While the commission has directed companies to use a comment box to share additional information on nonbinary workers, it has not removed the mandatory binary choices. The commission a year ago added a nonbinary option on its charge intake process, but said procedural hurdles prevent it from changing the EEO-1 right now. One HR director previously told HR Dive the requirement puts HR pros in the uncomfortable position of deliberately misgendering workers.