Is “Boy, you need to pray” Comment to Biscuit Maker A Violation of Title VII?

The EEOC continues its push to recognize job protection for LGBT workers under Title VII. On Wednesday, the EEOC filed a lawsuit against Bojangles Restaurants Inc. alleging that the restaurant chain discriminated and retaliated against former employee Jonathan Wolfe. The Complaint alleges Wolfe, who was transitioning from male to female, was told she could no longer wear makeup or fake fingernails while working, harassed by co-workers, told she could never enter the store dressed as a woman, and ultimately terminated.

While no federal appeals courts have addressed the issue of job protection for LGBT workers under Title VII, previous case law does hold that bias based on gender identity or a failure to conform to traditional gender stereotypes is bias based on sex.

In the current situation, the EEOC alleges that while Wolfe “wore modest and natural makeup, short and cleanly-maintained artificial fingernails, and her hair in a very short and gender-neutral ‘afro’ hairstyle” as well as wore the company’s gender-neutral polo shirt, shoes and visor, her unit director would make harassing remarks about her posture, gait and speech and forbade her from entering the store dressed as a woman.

The complaint alleges that Wolfe was moved from a biscuit-maker position to a cashier position and told not to speak in her normal voice and to behave and walk in a manner that was consistent with male stereotypes. Despite complaints the conduct continued and the assistant manager began making harassing remarks including: “Boy, you need to pray,” and “God made woman for man.” After multiple internal complaints regarding the behavior, the Complaint alleges that Wolfe was fired. The lawsuit is currently pending in the Eastern District of North Carolina.

Verrill Dana’s Labor & Employment Practice Group will continue to keep readers informed as this case develops.