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Is Calling “Him” “Her” Illegal?

A former employee and transgender woman who was fired from New York City’s Salt Bae restaurant claims her employer did nothing while she was repeatedly misgendered and harassed by coworkers and management.  The harassment continued after her initial complaints to management and ultimately resulted in her termination. 
According to court filings, the plaintiff, Mishelle Guillen, alleges she was terminated after complaining to human resources that fellow staff failed to respect her gender identity. According to the complaint, “Throughout the duration of plaintiff’s employment by defendant, her gender identity — as a transgender woman — was not respected. On the contrary, she was ridiculed, belittled and harassed on a daily basis.” 

According to Guillen, she was upfront with coworkers and her managers from the beginning of her employment that she does not identify as male. Rather, “Plaintiff identifies her sex as a female. Plaintiff’s gender expression is woman.” She alleges she was clear with her managers and coworkers that their persistence in referring to her as a man was traumatizing. Plaintiff asserts she even went as far as changing her appearance and voice to try to better fit with her gender identity.  

Despite all her efforts, Guillen claims her managers and coworkers repeatedly refer to her as “Él” (he) and “Señor” (sir). In fact, when she complained to the HR Department, that a chef had used the phrase, “Hey man,” to address her, HR responded that the term “man” or “men” is considered a neutral term that can be used to address both men and women. 
The suit goes on to allege, “Defendant’s managers were aware of such treatment and did not take actions to cease or even curb the transphobic — discriminatory — actions of plaintiff’s fellow employees. In fact, defendant’s managers were a part of the daily harassment plaintiff endured.” 
At its core, the suit is over whether the company’s actions were in violation of the New York City Human Rights Law (“NYCHRL”), which makes it illegal to discriminate against an employee based on her/his actual or perceived gender. 
Guillen seeks back wages for wrongful termination, compensatory damages for her pain and suffering, and punitive damages resulting from the “intentional and pervasive” discriminatory conduct she had to endure while working at the restaurant. If she wins a large verdict, this case could become a national focal point for this issue. 

Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at  info@brodyandassociates.com or 203.454.0560.