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July 7 — A transgender Bojangles employee in Fayetteville, N.C., was subjected to sex-based harassment, including being told to groom herself in a more stereotypically male fashion, and was retaliated against for complaining about the mistreatment, the EEOC alleges in a lawsuit ( EEOC v. Bojangles Rests., Inc. , E.D.N.C., No. 5:16-00654, complaint filed 7/6/16 ).
Jonathan Wolfe, who was transitioning from male to female, was subjected to a manager's negative remarks about her effeminate mannerisms shortly after she was hired by Bojangles Restaurants Inc., the Equal Employment Opportunity Commission charged in the July 6 complaint.
Wolfe wore modest makeup and a gender-neutral hairstyle at work, the agency said. Her troubles escalated after she showed up at her store while off duty “fully dressed as a woman,” it said. She was told she could no longer wear makeup or fake fingernails while working and to never again enter the store dressed as a woman.
A manager began making repeated references to “God” and Wolfe's need to pray. The company then moved her to a different store against her will and later fired her, the complaint said.
The lawsuit continues the EEOC's efforts to have federal courts recognize job protections for LGBT workers under Title VII of the 1964 Civil Rights Act.
Bias based on gender identity or a failure to conform to traditional gender stereotypes is bias based on sex for purposes of the federal law, the EEOC and several courts have held.
No federal appeals court has addressed the issue, but it's presented in cases pending before the U.S. Courts of Appeals for the Second, Seventh and Eleventh circuits.
“All employees have the right to work in an environment free from sexual harassment and gender stereotypes,” Lynette Barnes, the regional attorney for the EEOC's Charlotte district, said in a July 6 statement. “Federal law provides transgender employees protection from sex discrimination in the workplace.”
Bojangles told Bloomberg BNA that it “adheres to employment policies prohibiting discrimination on the basis of sex and all other protected characteristics.”
“The termination of this employee in 2013 was based on the individual’s workplace misconduct and had nothing to do with the person’s sex or gender identity,” Bojangles Senior Communications Manager Brian K. Little said in a July 7 e-mail.
Wolfe was hired as a biscuit maker in May 2012, according to the complaint. She “wore modest and natural makeup, short and cleanly-maintained artificial fingernails, and her hair in a very short and gender-neutral ‘afro' hairstyle” when she was hired by and throughout her employment with Bojangles. She also wore the company's gender-neutral polo shirt, shoes and visor, and her own women's slacks, the EEOC said.
Her unit director made comments from the outset about Wolfe's posture, gait and speech. A few months into her employment, Wolfe visited her store dressed as a woman while off-duty, and the unit director immediately forbade her from ever doing so again, the complaint said.
A month or so later, an assistant manager started making harassing remarks to Wolfe, including “pray to God or go to hell,” “God made woman for man,” and “Boy, you need to pray.” Wolfe complained, and the assistant manager was promoted to unit director at a different Fayetteville location, the EEOC asserted.
Wolfe, on the other hand, was moved to a cashier position and told not to speak in her normal voice and to behave and walk in a manner consistent with male stereotypes. She complained to her area director, but he didn't respond, she said.
Another assistant manager criticized Wolfe when she subsequently visited her store while off-duty wearing braided hair extensions that reached the middle of her back. The unit director told Wolfe not to wear the extensions in the store again because she is a “male” and that she would be fired if she failed to comply, according to the complaint.
She complained again to the area director and was threatened with termination. Instead, she was transferred over her objections to the other Fayetteville location where one of her harassers had been made unit director, the lawsuit alleged.
Wolfe was fired by the area director in February 2013 after calling the company's employee hotline to complain. Her transfer and discharge violated Title VII's anti-retaliation provision, the EEOC asserted.
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Text of the complaint is available at https://www.bloomberglaw.com/public/desktop/document/US_Equal_Employment_Opportunity_Commission_v_Bojangles_Restaurant?1467903538.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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