Applebee's pays $100K to settle transgender hostess' bias suit

Dive Brief:

The companies that operate a New York Applebee's have agreed to pay $100,000 to settle claims that they fired a hostess because she was transgender. (U.S. Equal Employment Opportunity Commission v. Apple-Metro, Inc. and Hawthorne Apple, LLC., No. 17-cv-4333 (S.D.N.Y., Oct. 25, 2018)).
The U.S. Equal Employment Opportunity Commission (EEOC), which sued on her behalf, alleged that employees at an Applebee's in Hawthorne, New York, subjected a transgender woman to a hostile work environment based on her sex and that the employer fired her in retaliation for complaining. Co-workers made "crude and disparaging remarks about her being transgender," the EEOC said.
The two-year consent decree resolving the suit requires the employers to, among other things, provide anti-discrimination training with an EEOC-approved trainer, to keep records of every complaint alleging discrimination or retaliation, to provide semi-annual reports to the EEOC and to allow an EEOC representative to enter the Hawthorne restaurant or the New York City metro area Applebee's corporate offices without advance notice to verify compliance with notice-posting requirements.

Dive Insight:

EEOC takes the position that discrimination based on transgender status is sex discrimination. That stance, however, is "contrary" to that of the U.S. Department of Justice (DOJ), EEOC acting chair Victoria Lipnic recently recently said.

DOJ filed a brief in a case pending before the U.S. Supreme Court over the firing of a transgender employee in which it argued that the ordinary meaning of sex does not refer to gender identity. DOJ's stance represents the administration's position, while EEOC remains in direct disagreement. The commission's guidance on the issue has been challenged in court, but the agency continues to enforce its position, suing employers that don't comply with its directive.

Federal appeals courts also remain split on the issue, and the Supreme Court has yet to take up a case that would clarify the matter for employers. Experts continue to advise employers not to discriminate on the basis of either gender identity or sexual orientation.