When the abuse by her colleagues at Publix was enough to send her to the hospital, Kevin Whitter, a transgender woman, had enough.

Over 16 pages in her complaint, she recounted being told to dress like a man, called a “he-she,” “shim,” and coworkers grabbing her buttocks.

“Whitter felt isolated and victimized … however Whitter complied because she was in fear of losing her job,” according to the complaint.

Unfortunately, Whitter’s experience is not an isolated incident — Publix has a long history of discrimination against LGBT workers. In writing this story, SFGN reached out to half a dozen lawyers, most of whom were unable to speak because they were either in litigation with Publix or had signed non-disclosure agreements in past cases.

Publix’s media relations team did not respond to requests for an interview or a statement for this story.

“Publix has a concerning history with the treatment of its LGBTQ employees,” Brandon Wolf, the media relations manager for Equality Florida, wrote in an email. “Everyone deserves to be treated with dignity and respect, regardless of how they identify or who they love. It is estimated that, for fear of facing discrimination, nearly 50% of LGBTQ Americans are not out at work.”

 

 

A History of Discrimination

In 2017, Juan Pastran filed a complaint against Publix, alleging that staff at the Miami store where he worked would call him gay slurs in English and Spanish, posted a photo in the lounge of an overweight woman with his name written on it, asked when he gets his period and the size of his bra, and told to “act more like a man instead of a ‘bitch.’”

“The extremely degrading and abusive discrimination and harassment got so severe and constant that the Plaintiff would regularly cry [including during work] and have anxiety and fear at work, and even was not able to sleep,” according to the complaint.

When HR allegedly did nothing to stop the abuse, Pastran filed a discrimination suit with the EEOC and the Florida Commission on Human Relations, but it only made the work environment more hostile. Shortly after, he was suspended without pay.

Whitter’s complaint was filed in November 2020. She alleges that even though Publix supervisors at the Brickell store knew her gender identity, she was told to cut her hair and wear a men’s uniform. She was also told she could not use the women’s restroom because “you look like a man and you are a man.” Her colleagues bullied her, calling her “he-she” and “shim,” making inappropriate comments about her body, grabbing or rubbing her buttocks, showing her pictures of penises, and told her to wear a compression top, saying “Why can’t you be like other gay people here? Be gay and keep it to yourself.”

Whitter did as she was told for fear of losing her job, and when she reported the harassment to her supervisors, they did not do anything about it. Another employee told her, “We don’t tolerate homosexuals in my country.” Whitter yelled back at them, leading to Publix security escorting her out of the building and telling her, “Get the fuck out of Publix you sissy he-she.”

Mediation is set for this June. Her lawyer did not respond to an email for comment.

Misguided Policies

The introduction of PrEP as a medication to prevent HIV/AIDS was a huge turning point in LGBT health. But in 2018, a Georgia doctor at a PrEP clinic reported that a patient who worked at Publix was unable to get a prescription for Truvada filled at the pharmacy, even after an appeal. Truvada is an FDA-approved daily pill that provides nearly 100% prevention of HIV in HIV-negative people who are exposed to the virus. The doctor discovered Publix was refusing to cover it.
"Annually, we evaluate benefits covered under our health plans," a spokesperson for Publix at the time told another media outlet. "There are numerous medications covered by the plan used in the treatment of HIV."

Of the 400 patients who were prescribed the medication by the doctor, this patient was the only one who had issues getting it filled. It harkened back to the scandal of Hobby Lobby refusing to cover birth control pills for its employees on religious grounds. After a meeting with Publix, Florida Rep. Carlos G. Smith reported his findings, including that the store wouldn’t cover medications that prevent future illness — however, they cover birth control pills.

Less than 24 hours later, Publix decided they would start covering Truvada.

Publix also has a zero on the Human Rights Campaign’s annual corporate equality index — not because of its poor performance, but because the company has refused to fill out the survey every year.

The annual report showcases how companies rank in terms of their “corporate policies, practices and benefits” as it relates to their LGBT employees. In an email to the Miami New Times, a spokesperson said that they are “inundated with survey requests across multiple industries,” and the HRC survey is one they have opted out of. At the time of the article, the spokesperson noted that in the five states where they have stores, gay marriage is not legal and that “we follow all laws in the cities and states in which we operate."

At the same time, other companies that sell groceries have taken the time to fill out the survey year after year. In 2021, Costco got a 90 and Walmart was one of more than 700 companies to receive a perfect 100 score. Other competitors, such as Aldi, Trader Joe’s or Fresh Market, are not eligible to be surveyed as they are too small.

“We saw in 2018 that Publix was willing to hear from the LGBTQ community and take action to reverse a damaging policy regarding HIV prevention,” Wolf said. “It's our hope that Publix again takes the concerns of its LGBTQ employees seriously, sets an inclusive table to hear their concerns, and takes meaningful action to create safe, affirming workplaces for all.”

Respect and Dignity

It’s not lost on Donna Ballman that Publix’s behavior goes against one of its founding principles: respect the dignity of the individual. A lawyer for 35 years, she has represented employees in cases against their employers and is also an arbitrator and mediator. In her decades of experience, she has taken cases involving Publix — not LGBT cases, but she has represented LGBT clients against other companies.

But while Publix is usually responsive to complaints from employees, Ballman says LGBT issues are “one of those things they’ve been very backward on.” Now that discrimination against LGBT people is no longer allowed — the Supreme Court ruled in June 2020 that gay and transgender people are protected by the Civil Rights Act — companies are being forced to treat their employees fairly.

“I think they try to paint themselves as being very pro-employee and addressing issues promptly. I think the reality is that as with any other HR department, HR represents the company and not employees and so because Florida’s laws are so anti-employee to begin with, I think Publix — and most large companies in Florida, tend to only really focus on what’s illegal and addressing stuff that’s illegal. So as the laws change, then they act.”

“One of the things that was really interesting was when gay marriage became legal, employers were still allowed to discriminate against people for being gay, and so you had those two things butting up against each other,” Ballman said. “I was running into a lot of cases where people would get married and that was how the employer found out they were gay or lesbian and that generated a situation of some sort of discrimination or retaliation.”

“There was so much resistance and it took a while for employers to catch up and realize they were screwing up,” she said.

There is only one state that protects employees from bullying in the workplace: Tennessee. Florida is also not known for passing pro-employee laws, including an employer’s ability to fire someone without cause. But while bullying is allowed in Florida, specifically targeting someone in a protected group — such as gender identity and sexual orientation — is not.

“Bullies tend to think they’re immune, but they aren’t,” Ballman said. “And I’ve never understood why employers don’t just institute zero tolerance for bullying policies. Even though there are no laws right now, why allow that? It’s distracting, it affects morale, people are obviously not working when they engage in this behavior — why not?”

Wolf adds that advocating for LGBT employees and customers is not only the right thing to do, but it’s also a good move for business.

“An overwhelming majority of Floridians support protection from discrimination for LGBTQ people and business leaders have identified that safe, affirming workplaces attract a bigger, more diverse customer base,” he said.

“People want to spend money where they know employees are cared for, regardless of sexual orientation or gender identity.”

How to Report Discrimination

Donna Ballman shared the steps to advocate for yourself if you’re being discriminated against at work.

  1.  Report it in writing to human resources. You want to have proof that you reported the incident and what happened. Make sure you mention in the complaint how you are being singled out or treated differently, whether it be due to your age, race, sex, religion, sexual orientation or gender identity.

     
  2.  It’s HR’s duty to address the situation in a reasonable amount of time, whether it be talking to the employee or even firing them (but they are not obligated to do this). “It’s their duty to make it stop,” Ballman said. If the discrimination happens again, continue filing complaints in writing.

     
  3.  If you feel you’ve exhausted your options internally, file a complaint with the Equal Employment Opportunity Commission (EEOC). In Florida, you have 300 days from the date of discrimination to do so. Visit eeoc.gov/filing-charge-discrimination.
     
     
  4. EEOC has a mediation process that both parties may agree to. If you agree, the case may settle at mediation. If it doesn’t settle or if both sides don’t agree to mediate, the case will go to an investigator. An investigator will determine whether there is cause or if they are unable to determine that cause exists. Regardless of the findings, you have the right to sue, but Ballman said, “A lawsuit is a nuclear option.” If the investigator finds cause, you are also able to go through conciliation to try and settle the case. It is completely up to you whether to sue the company or not, and people make different decisions based on what is best for them. Note that if you choose to go this route, the suit will be public record. Filing with EEOC is not a public record, so will not show up in a background check.

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