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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, August 21, 2006

Chic restaurant sued by transgender employee

A story in the NY Daily News on Friday tells the story of a court ruling permitting chef Eric Buffong to go forward with his discrimination suit against Castle on the Hudson. "Before his fellow cooks discovered that he was born Erica, Eric Buffong said he was known only as the rising star in their ritzy Westchester restaurant. But within weeks of a colleague brandishing a high school yearbook photo showing him as a woman, Buffong became a pariah in the kitchen and was swiftly fired, he said." It's interesting that this story is coming out now, since the ruling was issued in August of last year. It's not even legal news, since the NY courts first recognized the rights of transgender employees through state law in 1977. But it is news now, since it's in the Daily News.

The restaurant claimed that the employee had no case because transgender employees have no legal protections. In fact, they might not be entirely blamed for thinking so, since "gender identity" is not mentioned in the NY state law, which prohibits discrimination based on "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status."

Nonetheless, the judge's brief opinion in Buffong v. Castle on Hudson (2005 WL 4658320) noted that, if one reads court opinions, they have long held that the NY state definition of "sex" covers transgendered persons, citing Richards v. United States Tennis Assn., 93 Misc.2d 713 (Supreme Ct. New York 1977), a fascinating case in its own right. The judge also referenced some recent cases in New York affirming that ruling.

Perhaps the New York legislature ought to put "gender identity" in the statute so everyone can see it right up front.

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