Though Maryland workers have been protected from gender identity discrimination under State law since 2014, it wasn’t until last year that the Supreme Court made clear employees are protected under federal law too. You can read about the landmark Title VII decision, Bostock v. Clayton County, No 17-1618 (U.S. June 15, 2020), here.
A recent district court decision offers useful guidance about the circumstances courts in this jurisdiction may find sufficient to establish a Title VII gender identity claim, as the law continues to develop. Membreno v. Atlanta Restaurant Partners, LLC, No. 19-cv-00369-PX (D. Md. Feb. 5, 2021).
The complaint in Membreno was filed by a transgender woman who worked for Friday’s for almost 10 years. At the time of her hire in 2007, she presented as a woman and requested for her colleagues to call her “Diana”, instead of her legal name “Jose”, which she formally changed in 2014.
In December 2016, Membreno was fired after she notified Friday’s days in advance that she could not work her scheduled Christmas Eve shift. According to Friday’s, her actions were a violation of policy that left the company short-staffed. According to Membreno, her actions were inconsistent with company policy and the so-called violation was pretext for sex discrimination.
Shortly after she was fired, Membreno sued Friday’s, claiming her termination was based on her transgender status, and that she suffered workplace harassment on account of her gender identity. Allegations of harassment included ridicule for using the women’s restroom to the point that she stopped relieving herself at work; a manager’s outing her to staff and referring to her by her deadname both in-person and on published shifts; improper pronoun usage; physical assault; and other insulting remarks about both her appearance and her mannerisms. Despite the hostile environment, Membreno claims she had a stellar performance record and was disciplined more harshly than others for missing her shift on Christmas Eve.
The district court sided with Membreno, concluding the record contained ample evidence of severe or pervasive conduct based on her transgender status, and that a reasonable factfinder could conclude Friday’s stated reasons for firing Membreno were a pretext for discrimination. As a result, she can now proceed to trial on both claims.
The case is good reminder to businesses to ensure that workplace policies and practices are meeting the needs of all employees, including their transgender staff. Best practices include:
- Inclusion of gender identity and expression as a protected status for workplace policies
- Transitioning an employee’s name and gender in personnel records upon request
- Permitting employees to use facilities that correspond with their gender identity
- Ongoing harassment and discrimination training
- Neutral dress code policies