Transgender T.J. Maxx Worker Allegedly Called ‘He-She,’ ‘Shim’

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By Patrick Dorrian

Nov. 14 — Employees at a T.J. Maxx store in Manhattan taunted and harassed a newly hired transgender co-worker, including refusing to refer to her using feminine pronouns, the woman claims in a federal lawsuit ( Smith v. The TJX Cos. , S.D.N.Y., No. 1:16-cv-08755, complaint filed 11/10/16 ).

The case reaffirms that transgender workers have become increasingly willing to make public their too frequent mistreatment in the workplace and that employers likely can increasingly expect to face lawsuits for gender identity discrimination, a lawyer for the transgender worker, Chyanne Smith, told Bloomberg BNA.

“Just a few years ago, these claims were hardly litigated,” Walker G. Harman Jr. said Nov. 14. Now gender identity bias cases are being litigated, he said, because transgender people are stepping forward and are more willing to take action to right the “horrific wrongs” they’re subjected to in the workplace.

Co-workers directed “transphobic slurs,” such as “he-she” and “shim,” at Smith, she alleges in a complaint filed Nov. 10 in the U.S. District Court for the Southern District of New York. The harassment, which started on Smith’s first day on the job as a supervisor at T.J. Maxx’s store on West 57th Street in New York City, further included Smith being mocked when she used the store’s bathroom, with one co-worker telling her, “We don’t know what’s between your legs.”

Smith complained to store managers, but nothing was done, according to the complaint. Instead, she was fired a little more than a week into the job, with managers telling her that she falsified records in connection with her pre-employment background check, the complaint asserts.

That was a cover for discrimination and retaliation, as Smith was open about her criminal past during the hiring process and twice was told she didn’t need to disclose that information in her employment application, according to the complaint. The mistreatment violated New York City anti-bias law, Smith charges.

LGBT Protections Clearer, Stronger Under NYC Law

Whether federal employment discrimination law covers LGBT workers has been much debated, with the federal agency that enforces that law—the Equal Employment Opportunity Commission—endorsing the view that such bias is unlawful under Title VII of the 1964 Civil Rights Act’s prohibition of sex discrimination.

The EEOC scored a big win on the issue when a federal judge in Pittsburgh Nov. 4 embraced the agency's position, and three federal appeals courts appear poised to weigh in on the question. Traditionally, courts had read Title VII’s sex bias protection as not extending to discrimination based on sexual orientation or gender identity, but some federal trial court judges have begun to break from that precedent, finding that shifting societal understandings warrant a wider reading of the law. To date, no federal appeals court has held directly that discrimination based on gender identity or sexual orientation is per se sex discrimination.

That’s part of the reason why Smith’s lawsuit was filed under New York City law, Harman said. The New York City Human Rights Law doesn’t track federal law and is expressly intended to provide “broader and more liberal” rights than its federal counterpart, he said.

It’s clearly stated in the NYCHRL that gender identity is a protected trait, said Harman, who’s with the Harman Law Firm LLP in New York.

Indeed, the New York law defines the term “gender” as including a person’s “actual or perceived sex” as well as that person's “gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” Moreover, the New York City Commission on Human Rights, which enforces the NYCHRL, issued guidance in December 2015 intended to clarify the meaning of gender identity and gender expression discrimination under the law and touting New York City’s protections of transgender and gender non-conforming individuals’ rights as among the strongest in the nation.

The TJX Companies, which operate T.J. Maxx, Marshalls and similar off-price apparel and home fashion retailers, decline to comment on the lawsuit, spokeswoman Doreen Thompson told Bloomberg BNA Nov. 14.

Edgar M. Rivera of the Harman Law Firm also represents Smith. No attorney has filed an appearance yet for TJX.

The Massachusetts-based TJX has faced 20 employment lawsuits over the past five years and has always been represented by either Seyfarth Shaw LLP or Littler Mendelson P.C., according to Bloomberg Law litigation analytics .

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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