Transgender baristas in airports across the country are saying they face misgendering, the use of “dead names” and other transgender discrimination, all while wearing the logo of a popular progressive company: Starbucks. While the parent company set high standards for the treatment of LGBTQ and other minority workers, its franchisee, HMSHost, appears to be falling short of the mark. But is there anything the employees’ union can do about it?

Baristas Face Transgender Discrimination in Airport Starbucks

A number of baristas from airport Starbucks stores around the country are reporting that they are facing transgender discrimination by their managers up to the level of the franchise owners. Cora Noble-Bray, a barista at Portland International Airport said:

“I transitioned to a woman while working at Starbucks and while a lot of my coworkers picked up my new name and pronouns immediately, one lead in particular did not put any effort into changing. Being called by my old name and seeing it stay on my work schedule felt like my choice and my identity didn’t even matter to him or the company. The managers at HMSHost do not use my correct pronouns. They continually refer to me as he/him, even though I’m a trans woman… I’ve let them know what my new name is and the old name still shows up on my schedule. I can handle being misgendered by customers that I only see for two minutes. Our regular customers and airport employees have all been good about getting my new name and pronouns right. But when it’s my direct supervisor, it’s exhausting, and I genuinely dread coming in to work—so much so that I consider calling off and taking discipline. I never know when he’s going to say something. I feel like I always have to have my defenses up.”

Gigi Tolentino told a similar story of her time as a barista at the Honolulu International Airport:

“Within the first two years of working at HMSHost I was misgendered and discriminated against and it reached a point where enough is enough, it was when one of my managers ridiculed me in front of the passengers and coworkers by shouting out “sir, he’ll be right with you!” and pointing at me. She was laughing and smiling assuming that that was funny, but that moment was the most embarrassing moment of my life. At that moment I was embarrassed and insecure about me being a transgender woman. […] So I stood up for myself because I’m not going to let someone tell me I’m not valid as a human being.”

One manager is even reported to have said, “as long as she has a p***y I will call her a she” about a transgender male employee.

The complaints were part of a 20-page report by UNITE HERE, a labor union that represents 45,000 workers in the airport industry and 4,000 workers at licensed Starbucks stores nationwide. The report analyzed approximately 2,000 workers at 142 airport Starbucks stores and included surveys of over 300 workers. In addition to allegations of transgender discrimination, it called out findings that the surveyed employees:

• Faced race-based pay discrimination with Black baristas earning $1.85 less than white baristas
• Worked through Starbucks’ 2018 racial bias training shutdown
• Face poverty and homelessness
• Were not provided tuition assistance on a level that allowed them to attend college
• Faced national origin discrimination in the form of being told to stop speaking their preferred language at work

Franchise Operator at Odds with Starbucks’ Policies for LGBTQ Workers

If seeing the words “transgender discrimination” and Starbucks in the same headline surprises you, you’re not alone. The Seattle-based coffee company is known for taking pro-employee positions on everything from equal pay to college enrollment. As it relates to the UNITE HERE report, Starbucks’ public statements promise:

• 100% racial pay equity
• Nationwide racial bias training that closed more than 8,000 stores in 2018
• Policies that allow LGBTQ employees to use their preferred names on store documentation
• Housing subsidies
• 100% tuition coverage (with certain conditions)
• Global commitments to hire 10,000 refugees by 2022

However, these public statements only apply to Starbucks’ corporate stores. The airport coffee shops like the one where Ms. Noble-Bray and Ms. Tolentino worked, are operated by a franchise owner, HMSHost. According to the UNITE HERE report, the franchisee is falling far short of Starbucks’ lofty goals. Gabriel Ocasio Mejias, a former HMSHost Starbucks barista at the Orlando International Airport, said:

“Starbucks corporate is very well known to be supportive of the LGBT communities… In this company, it’s the complete opposite. They suppress your uniqueness… It makes me kind of feel in a way that I’m going back into the closet, which is very unnerving to me.”

UNITE HERE has been trying to get HMSHost to address the transgender discrimination and other harmful practices happening in its franchise stores. However, HMSHost denies any discrimination is happening, and claims that the report is a “well-known tactic” to gain leverage and recruit new union members.

National Labor Relations Board Weakens Employees’ Power to Fight Discrimination in Franchise Companies

So far, UNITE HERE hasn’t been able to get Starbucks to weigh in on the dispute. That may have to do in part with changes to federal regulations regarding union workers in franchise businesses. Earlier this year, the National Labor Relations Board issued a new regulation that took effect on April 27, 2020. This regulation rolled back Obama-era protections for franchise workers and loosened the connection between a franchisor (like Starbucks) and the actions of its franchisee companies (like HMSHost).

Since 2015, franchising companies like McDonalds or Starbucks have been considered “joint employers” for workers at franchisee companies or contractors as long as they indirectly controlled employees’ work (such as directing franchisees to use a particular scheduling software). Under the new regulations, the parent company will not be liable for labor actions taken against employees of franchisees or contractors unless they have substantial, direct and immediate control over the employees. This includes control over employees:

• Pay
• Benefits
• Hours
• Hiring
• Firing
• Supervision
• Scheduling practices
• Working conditions

This frees parent companies like Starbucks from legal risk when their franchisees fail to live up to corporate employment standards. In the case of HMSHost, some of the very policies UNITE HERE are challenging show that Starbucks does not exercise the level of control to be considered a joint employer under the NLRB’s new regulations. In fact, should Starbucks put pressure on HMSHost to change its policies, it could expose the parent company to more litigation, making doing the right thing a costly proposition.

At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys work with employees in unions in New York and across the country. We know how to make the most of union grievance processes, to protect LGBTQ and transgender workers and what your options are to get relief from your employer, even if you work for a franchise. Contact us to schedule a consultation at our office in New York City, or over the phone.