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A transgender man won a $20,000 settlement in a lawsuit against the fast food chain Shake Shack. This was after he faced a month of transphobic harassment on the job without support from his employer. The transgender man argued that his employer had violated anti-discrimination employment laws and had not taken any action to address the harassment. The court ultimately agreed with him and awarded him a settlement. The average settlement for employment discrimination claims is $40,000, according to the Equal Employment Opportunity Commission (EEOC).
The man, who has not been identified in the media, worked at Shake Shack in 2020 in Oakland, California. He said that he was harassed daily and referred to as a female.
He told his supervisors about the harassment. Instead of helping him, they told him to "explain his gender to coworkers rather than rely on management to correct discriminatory behavior," according to the California Civil Rights Department, which helped him with his lawsuit. The supervisors said his responsibility was to convince his coworkers to stop harassing him. This is a clear violation of the law, as it is the employer's responsibility to create a harassment-free work environment, not the employee's. The employee has the right to report any harassment to management, and the employer must address the situation.
His lawsuit says that after a month, he grew "frustrated by management's failure to address his concerns" and quit.
"California law prohibits intentional misgendering in the workplace," California Civil Rights Department director Kevin Kish said. "Intentional misgendering and other forms of discrimination based on gender identity and gender expression can be stressful and traumatic."
After mediated talks, the agency said that Shake Shack agreed to improve their discrimination training for managers and employees and adopt more strict policies about discrimination and harassment. Shake Shack also agreed to report anti-LGBTQ+ discrimination and harassment complaints directly to the state for the next year and pay the former employee $20,000.
Although some employers are becoming more aware of the laws surrounding gender-based discrimination, this type of discrimination is still a severe and prevalent problem – especially for members of the LGBTQ+ community.
Under California law, the intentional misgendering of employees in the workplace is explicitly prohibited. While cisgender employees may not face misgendering all that often, being misgendered is a common issue for people who are transgender, non-binary, or gender-nonconforming — and intentional misgendering comes with significant repercussions for members of the LGBTQ+ community. Employers should be aware that intentionally misgendering employees can have serious consequences, including potential legal action. They should ensure that all employees are addressed respectfully and appropriately.
Misgendering employees at work has more severe implications than being illegal in many states. A June 2022 report by One Fair Wage and the UC Berkeley Food Labor Research Center stated that restaurant workers in the LGBTQ+ community faced higher levels of sexual harassment, homophobia, and transphobia than their non-LGBTQ+ peers. Additionally, 25% of LGBTQ+ restaurant workers reported experiencing discrimination based on sexual orientation or gender identity. Of those respondents, half said that the discrimination they shared
had a negative impact on their work environment. This is like a double-edged sword, where LGBTQ+ workers are more vulnerable to discrimination and harassment but also more likely to suffer a negative impact from that discrimination due to the added layer of prejudice they face.
Following the verdict, Shake Shack issued a statement, "Creating a welcoming and fulfilling environment for all our employees and guests is critical. We are constantly taking steps to ensure our policies and culture reflect our commitment to diversity and inclusion in the workplace."