A restaurant based in Tonawanda, NY recently agreed to pay $25,000 to settle a sex discrimination suit brought against it under Title VII of the Civil Rights Act and the New York State Human Rights Law.
The owners, managers, and employees at T.C. Wheelers Bar & Pizzeria had been accused of subjecting an employee to frequent, offensive comments that referenced the employee’s transgender status. The owners also were accused of misgendering the employee on numerous occasions and allowing coworkers and managers to do the same. After finally leaving the restaurant, the employee brought their claim to the EEOC and filed a lawsuit against T.C. Wheelers for sex-based discrimination under Title VII, which eventually lead to the $25,000 settlement.
The claim and settlement are a reminder of the changing social climate surrounding gender and sexuality. It’s inevitable that small businesses and their owners will interact with people of various gender identities, either as customers or employees. As a consequence, then, we’ll help you take a closer look at the law to see exactly what it says and how it may affect your small business.
A Brief Refresher: Title VII of the Civil Rights Act and the NYS Human Rights Law
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex (including gender identity), and national origin in employment practices. Any person entitled to protection from discrimination under these categories is considered a member of a protected class. Some – but not all – prohibited practices include:
- Refusing to hire someone because they’re a member of a protected class;
- Firing someone because they’re a member of a protected class;
- Classifying and/or segregating members of a protected class;
- Failing to address or promoting harassment or discrimination towards members of a protected class;
- Granting preferential treatment to employees who are not of a protected class; and
- Providing unequal compensation or an unequal workload to members of a protected class.
While Title VII is a federal law, New York has enacted a similar policy through the Executive Law, otherwise known as the NYS Human Rights Law. This law functions in the same way as Title VII in that it also makes it unlawful to refuse to hire, to fire, or to discriminate against an employee based on their status in a protected class, including gender identity, in New York.
Along with the courts, the Equal Employment Opportunity Commission (EEOC) enforces Title VII. Employers with at least 15 employees (or 20 employees in age discrimination cases) are subjected to oversight by the EEOC. Remember, the prohibited conduct applies to hiring and firing as well as other employment practices such as, for example, promotions or demotions.
In 2020, the United States Supreme Court held that transgender people are a protected class under Title VII. This means that making offensive or derogatory remarks concerning an employee’s transgender status or gender transition can constitute unlawful workplace harassment.
While accidentally misgendering an employee or accidentally using the wrong pronouns likely doesn’t meet the standard for unlawful discrimination, intentionally and repeatedly using the incorrect name for an employee, also known as their dead name, or misusing someone’s pronouns can create a hostile work environment for transgender employees.
How to Keep Your Business Safe from a Discrimination Lawsuit
So how do you make sure your business complies with the entire scope of Title VII? Luckily, we have some common-sense, straightforward, and easily-implemented suggestions to help keep your business free from a discrimination lawsuit.
Be respectful of others
The workplace is meant to be a safe place in that no one expects to be treated differently than others or made to feel worse because of their identity. Therefore, you should make every effort possible to show others the respect that they deserve regardless of their gender identity.
This includes respecting an employee’s preferred pronouns, not making any harassing or disparaging comments, and shutting down any inappropriate and harassing behavior from co-workers. When you follow this model, you create a more productive working environment as people naturally will feel more comfortable showing up to work without fear of harassment or discrimination.
Monitor employment practices for discrimination
Sometimes it’s not just an individual or a group of people creating discrimination in the workplace; sometimes it’s how the workplace itself is managed or operated. That’s why it’s important for you to take a critical look at your employment policies and practices to make sure no policy will have a harmful impact on employees or potential employees who belong to a protected class.
In terms of hiring practices, regularly review your current hiring process to make sure it’s inclusive to potential employees, such as ensuring applications are available for everyone and are not refused to people in protected classes.
At the other end, you need to ensure that your firing policies are non-discriminatory, too. This can be accomplished by implementing a routine practice of documenting the reason[s] why an employee was or is recommended to be fired. Be certain there’s a legitimate, non-discriminatory reason for any termination.
Beyond hiring and firing, you should make sure that compensation, benefits, disciplinary actions, and trainings are consistently provided to all employees.
Implement an inclusive bathroom policy
The EEOC has taken the position that employers may not prohibit employees from using a bathroom corresponding to their assigned gender. In other words, you can’t stop an employee who identifies as a transgender man from using the men’s bathroom. Thus, businesses generally must open restrooms for use by all employees regardless of gender identity.
However, there’s also the option of creating an all gender bathroom, or a single bathroom for use by all gender identities. Doing so creates a safe and inclusive environment for employees and customers so long as the bathroom is open to all employees for use. Employers can’t cordon off a single bathroom for use solely by transgender employees.
The reality is that not all employees will agree with these practices. Their refusal may be due to religious beliefs or even prejudices. However, employers must be mindful of gender-based discrimination and what’s entailed. Otherwise, you may be opening yourself up to an expensive discrimination claim or lawsuit.
Have more questions?
If you’ve got more questions or need help fashioning policies or practices that are compliant, let us know. You can reach us at firstname.lastname@example.org, call us at 716.839.9700, or use our handy contact form. We’re here to help business owners and entrepreneurs across New York State.