EEOC Sues Workers At Neighborhood Pizza Bar For Misgendering Transgender Cook

The EEOC charges management with sex discrimination for failing to protect the transgender worker from "almost daily" harassment.

It is one of the first lawsuits filed by the EEOC in the wake of a 2020 U.S. Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 protects transgender workers from “sex” discrimination.

Justice Neil M. Gorsuch penned the 6-3 decision in Bostock v. Clayton County which holds that an employer who intentionally penalizes a transgender worker because s/he is transgender violates the provision of Title VII that prohibits “sex” discrimination.

The EEOC recently sued T.C. Wheeler Bar & Pizzeria, of Tonawanda, NY, for engaging in sex discrimination against Quinn J. Gambino, a female-to-male transgender cook.

According to the complaint, Gambino did not disclose at his job interview in January 2021 that he was a transgender male (biological female) but, after he was hired, told one of the two brothers who owns the bar, Christopher Candino, that he used male pronouns.

After that, the EEOC alleges co-workers made “unwelcome and offensive remarks” about Gambino’s transgender status until he was forced to resign in May 2021.

Among other things, co-workers allegedly asked questions about Gambino’s genitalia, compared being transgender to pedophilia, said Gambino was not a “real guy,” and refused to accept that Gambino’s name was “Quinn.” The EEOC says a “manager” said about Gambino, “she’s a she.”

Moreover, Gambino says she was repeatedly misgendered and referred to with female pronouns, even after complaining twice to her immediate manager, who reported the second complaint to Candino.

“Because of the incessant harassment Gambino experienced and Defendant’s failure to adequately address it, Gambino was compelled to resign in May 2021,” the complaint states.

The EEOC is seeking a permanent injunction and “appropriate backpay with prejudgment interest” in an amount to be determined at trial.

Implications of Bostock

In Bostock, Justice Gorsuch equated transgender status with “sex,” adding "that “an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

The breadth of this ruling is only now becoming apparent. It effectively means an employer cannot treat a transgender worker any differently than a female worker. Potentially, this could mean a nursing home or hospital could not refuse a female-to-male transgender worker a job that involves the privacy of female patients (i.e. bathing).

The U.S. Supreme Court in 1998 had already extended Title VII to homosexual workers with respect to harassment. The Court held in Oncale v. Sundowner Offshore Services, Inc., that a homosexual could sue for sexual harassment by co-workers who were members of the same sex.

The case, EEOC v. TC Wheelers, Inc., was filed in the U.S. District Court for the Western District of New York.