Despite improving business at Cedar Hill restaurant, Buffalo Wild Wings fired its manager when she began presenting as a woman



DAVID TAFFET   | Senior Staff Writer

Kellie Alise Batko has filed suit against her former employer, Buffalo Wild Wings, charging the company with sex discrimination against a woman because she is transgender.

The restaurant has filed for dismissal of the suit, Batko has filed a response and is waiting for the court to rule on those motions.

The question before the court is whether sex discrimination against a trans woman is covered under Title VII. Buffalo Wild Wings claims Title VII’s prohibition of discrimination “because of sex” does not apply to discrimination against transgender people.

Under current federal guidelines, nondiscrimination statutes based on sex do include protections based on gender identity and transgender status. In June, the U.S. Labor Department announced updated regulations for federal contractors “reflect the current state of the law and the reality of a modern and diverse workforce.”

Batko’s attorney, Michael Hindman, said there’s little question Buffalo Wild Wings fired Batko when she began presenting as a woman.  “When she was a woman who acted like a man, everything was fine,” he said. “When she presented as a woman, it wasn’t.”

Batko worked as a restaurant manager for Buffalo Wild Wings for four-and-a-half years. In 2007, she was assigned to the company’s Cedar Hill location where she “improved the restaurant’s reputation in the community and its operational soundness,” according to the response to the defendant’s motion to dismiss.

“The company recognized she had transformed the store and done an exemplary job there,” Hindman said.

Batko said before she took over, that store had been in the red every month. Within a year of her taking over the location, it ranked No. 5 out of 192 corporate-owned locations.

During her employment, Batko began to present as a woman and legally changed her gender markers, including on her state-issued IDs and her Social Security card. She gave human resources her new legal information and ordered a nametag to reflect her new legal name.

Nine days later she was terminated. Her employers claimed it was for poor performance.

But, she said, “There was no reason [other than her transgender status] for them to have done what they did to me.”

In her suit, Batko claims that as long as her employer believed she was a man and went by a man’s name, the company was happy with her performance. Although her performance at work remained the same, when she no longer appeared to be a man and made legal changes to her identity, she was fired because she was a woman.

Although the Fifth Circuit Court of Appeals hasn’t ruled on a transgender employment discrimination case under Title VII, the 6th, 9th and 11th circuits have. All those courts have held that discrimination based on gender identity is sexual discrimination. And the Equal Employment Opportunity Commission has agreed them.

In Fabian v. Hospital of Central Connecticut, the court ruled, “Employment discrimination on the basis of transgender identity is employment discrimination ‘because of sex’ and constitutes a violation of Title VII of the Civil Rights Act.”

The EEOC has said, “When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim.”

While protecting transgender employees may not have been the intent of lawmakers who wrote Title VII, Batko argues her sex was the basis of her firing. In her lawsuit, she compares expanding the definition of sex discrimination to discrimination based on race.

“Courts have recognized that Title VII’s prohibition against race discrimination protects employees from being discriminated against because of an interracial marriage, or based on friendships that cross racial lines,” the plaintiff’s response says.

Title VII is usually used in sex discrimination cases to protect someone who doesn’t present in a way expected of that gender — by a man who may be described as effeminate or a woman who doesn’t wear makeup or clothes that are considered feminine.

For Batko, failure to adhere to a gender stereotype wasn’t the problem; she was fired because she presented as a woman.

The suit was filed in U.S. District Court in the court of Judge Barbara Lynn — someone who knows  something about gender discrimination first hand.

When Lynn graduated first in her class from law school at Southern Methodist University in 1976, she noticed men in her class were getting offers from major Dallas law firms, while she and other women in her class were not. When they sued half a dozen firms for gender discrimination, those firms changed their policies.

If Batko’s case goes to trial, Lynn may rule that Buffalo Wild Wings needs to change its policies as well.

This article appeared in the Dallas Voice print edition August 26, 2016.