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Rare Transgender Employment Discrimination Lawsuit Filed Against Burlington Coat Factory
The Recorder
February 26, 2009
Maya Perez, a transgender woman, claims to have suffered years of physical and verbal abuse while working at a Burlington Coat Factory store in San Francisco, all because of her gender identity. On Tuesday, she joined the short list of transgender people litigating such conduct.
Her lawyers, from the San Francisco Legal Aid Society's Employment Law Center, said Perez's case is one of a small number of employment discrimination suits brought by transgender people since California's Fair Employment and Housing Act was expanded to protect gender identity in 2004.
"This is a population that we think is very underobserved by the legal community," said Elizabeth Kristen, a staff attorney.
Perez, 42, alleges in a complaint filed in San Francisco Superior Court that her co-workers and customers taunted her -- calling Perez "he-she," "Mr. Bitch" and "faggot" -- and participated in physical harassment, including pushing, shoving and fondling. In her complaint, Perez says she reported the harassment to Rod Davis, Burlington's regional human resources chief, in March 2007, and to the California Department of Fair Employment and Housing three months later.
The company let her go last month, the suit says; she claims it was retaliation for complaining.
"I'm coming forward today because I don't think any transgender person should have to go through what I did at work," Perez, who'd worked as a men's sales associate for about 12 years, said Tuesday at a news conference.
James McGrath III, a New York City-based partner with the firm Putney, Twombly, Hall & Hirson, has represented Burlington so far, according to Kristen. McGrath did not return an e-mail and phone call seeking comment on Tuesday afternoon.
Davis said he wasn't aware of the suit, and referred questions to a spokesman on the East Coast, who could not be reached late Tuesday.
Perez, who changed her name from Steven, began to "present" as a woman in September 2001. The following December, a manager allegedly began to give Perez pornographic magazines and photographs and "repeatedly made unwelcome comments to her about sex," the complaint states.
Over the years, Perez claims she was harassed by customers, including one who picked up a folding table and threw it. Perez claims her supervisors and co-workers often stood by and watched or intervened "only after the incidents had escalated to a frightening point."
Though Perez's complaint isn't the first brought in California by a transgender person for workplace harassment and discrimination, two plaintiff-side employment law attorneys said it's still fairly unique.
David Lowe, a partner at San Francisco's Rudy, Exelrod, Zieff & Lowe, said he's worked with three transgender clients who said their gender identity led to workplace harassment and discrimination; two of those led to settlements, and the third client only wanted advice.
"Transgender claims are still relatively uncommon even though the law has been expanded, and that's because a lot of people who are transgender are still afraid of reporting harassment or discrimination," Lowe said.
And because of the limited number of potential plaintiffs, Mark Thierman, a Reno, Nev.-based labor and employment law attorney, said he doesn't foresee a coming flood of similar cases.
Perez said Tuesday that she wants her job back, but she and her attorneys also said they want Burlington to change its policies and train managers and employees to be more sensitive toward gender identity. The suit also seeks money for punitive damages, emotional distress, back pay and attorney fees.
One question mark for Perez's case is so-called "comparator" evidence -- how similarly situated people are treated. Given the relatively small population of transgender people, both sides lack examples of how Burlington dealt with workers like Perez.
Kristen said that when it comes to discrimination, her team will look at how Burlington treated "biological females," but that "in terms of harassment, we don't really need comparators in that respect. ... It's about the subjective severity of the harassment and subjectively how they experienced it."
