Transgender Employee Sues Wal-Mart

Wal-Mart has a larger collection of lawsuits than men's suits.

They've got wage and hour lawsuits, gender discrimination lawsuits, disability discrimination lawsuits, racial discrimination lawsuits, and age discrimination lawsuits. The giant retailer has a small army of in-house lawyers and hired attorneys who defend the corporation from its own employees.

One of the "risk factors and uncertainties" that Wal-Mart lists in its 2015 annual report is the threat from "the outcome of legal and regulatory proceedings to which we are a party..."

One employee issue that has rankled Wal-Mart for years is its treatment of LGBT workers. In 2011, when Wal-Mart was trying to push its way into Manhattan, the Stonewall Democratic Club of New York City slammed the company for its homophobia:

Wal-Mart represents a culture of intolerance and insensitivity towards LGBT employees and issues that is unwelcome in New York. Just last year more than 100 Wal-Mart stores were found to be promoting a children's book that suggested that gay people can overcome 'sin' and convert to heterosexuality with the help of counseling. Wal-Mart CEO Mike Duke signed a petition in his home state of Arkansas that was aimed at preventing adoption by Gay and Lesbian parents.

A Wal-Mart PR official responded that:

Diversity and inclusion are enduring values that are fundamental to our culture... As part of our internal commitment to inclusion, we have Gay, Lesbian, Bisexual & Transgender Associate Resource Groups aimed at building a sense of community among associates sharing similar backgrounds and interests.

But the group Making Change At Wal-Mart noted in 2011 that Wal-Mart scored 40 out of 100 points on the Human Rights Campaign's Corporate Equality Index, "reflecting that Wal-Mart does not prohibit discrimination based upon gender identity, does not provide diversity training covering gender identity or have supportive gender transition guidelines, does not offer at least one transgender-inclusive benefit and does not offer domestic partner health insurance, COBRA, dental, vision, and legal dependent coverage." Wal-Mart also lost points for opposing a shareholder resolution at its annual meeting in Fayetteville, Arkansas to amend their non-discrimination policies to include gender identity.

In September of 2011, an article in the Windy City Times revealed that Wal-Mart had added transgender protections to its employee non-discrimination policy. The protections include gender identity and gender expression.

A Wal-Mart spokesman was quoted as saying, "We've had a strong anti-discrimination policy for a long time," but the transgender policy had been added "several weeks ago."

But having a document in a corporate file does not translate into store-level reality. A recent lawsuit in Camden County, New Jersey Superior Court, filed by a transgender Wal-Mart worker, charges that Wal-Mart has engaged in "transgender discrimination" in violation of that state's Law Against Discrimination (LAD). The plaintiff, Samantha Azzarano, who filed the suit under the name Robert "Samantha" Azzarano, alleges "that she was harassed in the workplace and terminated from employment because of her status as a transgender person."

Samantha Azzarano is a male to female transgender person who lives in Gloucester City, New Jersey, and worked at a Wal-Mart store in Deptford, New Jersey. The complaint was lodged against Wal-Mart and a member of upper management at the Deptford store. Azzarano, "although born biologically and anatomically male, identifies as a woman, and lives as a woman."

Azzarano was employed at Wal-Mart from September of 2012 until she was fired right after Christmas of 2014. Wal-Mart knew Azzarano was transgender for a year and a half before she was terminated. About 4 months after she came out to her immediate supervisor, Samantha began "dressing as a female and her name badge changed to 'Samantha.'" Her Member Services Manager, one of the defendants named in the lawsuit, referred to the plaintiff as "Samantha, Robert... he/she... whatever," to another employee.

Azzarano asserts that the Services Manager subjected her to verbal abuse, and "on a continuing and regular basis, would raise her voice to and/or yell at the plaintiff." By the spring of 2014, the Services Manager "began a campaign of write-ups and verbal coachings," that eventually led to termination. At one meeting, the Services Manager met with Azzarano and another worker and told the plaintiff, "We are always walking on eggshells for you. Now you know how it feels to walk on eggshells for everyone else."

In another incident a couple of months later, the Services Manager, as she was ending a meeting with Azzarano, said "in a low, but audible volume, 'That fucking tranny.'" Four months later, Azzarano was fired by the Services Manager directly -- even though Azzarano had been transferred to another department and had a different supervisor.

The lawsuit charges that the Services Manager fired Azzarano for her "transgender status," and subjected her to harassment under New Jersey's LAD statute. The Manager's "bias was a determinative and/or motivating factor" in the firing. The harassment was based on "gender, gender identity, sexual orientation, perception of sexual orientation, gender stereotype, and/or plaintiff's status as a transgender person." The lawsuit alleges that this harassment "was sufficiently severe or pervasive to render the working environment hostile, intimidating or abusive," and that Azzarano's termination was "willful, malicious, egregious and/or undertaken with reckless disregard" for Azzarano's rights.

Azzarono is asking for a trial by jury, and for reinstatement to her job at Wal-Mart, along with "equitable back pay and front pay... all lost wages, benefits, fringe benefits and other remuneration..." Azzarano's lawyer, Kevin M. Costello of Mount Laurel, New Jersey, told ThinkProgress that the Manager's use of the word "tranny... kind of put the nail in the coffin. The word 'tranny' is not a word that's acceptable to use to describe a trans person. It's as unacceptable as a racial epithet to describe a black person."

New Jersey is one of 19 states and Washington D.C. with anti-discrimination laws that explicitly cover transgender employees. In 2012, the federal Equal Employment Opportunity Commission (EEOC) ruled that Title VII of the Civil Rights Act of 1964 protects transgender workers from on-the-job discrimination. In part, the order states that "intentional discrimination against a transgender individual because that person is transgender is, by definition, 'based on ... sex' and such discrimination ... violates" the law.

In 2011, the 11th Circuit Court of Appeals upheld a lower court's ruling that a transgender woman who had been fired from her job as a Legislative Editor in the Georgia General Assembly, had been discriminated against. The court ruled: "We conclude that a government agent violates the Equal Protection Clause's prohibition on sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."

Advocates point out that Congress has still not passed the Employee Non-Discrimination Act (ENDA). According to the U.S. Senate's Committee on Health, Education, Labor, and Pensions, "Millions of lesbian, gay, bisexual, transgender ("LGBT'') and heterosexual Americans today face the possibility of being fired from their jobs, refused work, paid less, or otherwise being subjected to employment discrimination because of their actual or perceived sexual orientation or gender identity... The Employment Non-Discrimination Act is intended to address this discrimination and explicitly protect all Americans who are or may be perceived to be lesbian, gay, bisexual or transgender." But after 20 years or longer, there is no ENDA in sight.

It could take months, if not years, for Samantha Azzarano to get her day in court against Wal-Mart. Her litigation goes into the pile of pending lawsuits brought by Wal-Mart's own workers.

But this is how civil rights are won -- one brave person at a time.

Al Norman founded Sprawl-Busters in 1993 to help communities fighting big box sprawl. His latest book is Occupy Walmart.

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