Khadijah Farmer v. Caliente Cab Co.

by Ted Frank on May 16, 2008

A customer complained to the staff that a man was in the women’s restroom in the Greenwich Village restaurant Caliente Cab Co. Given the risk of multi-million dollar liability of failing to act in the face of a warning if a customer were assaulted by a man in the women’s restroom, a restaurant bouncer ejected Khadijah Farmer, Khadijah’s girlfriend, and a third in their dinner party.

Unfortunately for the restaurant, Khadijah Farmer was not a man, but an extraordinarily masculine-looking lesbian (who says she is mistaken for a man on a “daily basis”).

Further unfortunately for the restaurant, New York City has an unusual law prohibiting discrimination on the basis of “sexual stereotyping.” Further further unfortunately, Ms. Farmer wasn’t satisfied when the restaurant offered her a free meal in response to her complaint, and went straight for the lawyers. Further further further unfortunately, a top-tier law firm agreed to work the case “pro bono,” assigned three attorneys to it, and ran to the courthouse, even after the restaurant agreed to sensitivity training for its employees.

Let’s agree: the bouncer made a mistake and should have taken the opportunity to look at Farmer’s ID. Women shouldn’t be thrown out of women’s restrooms for looking like men, though one who looks as masculine as Farmer has to reasonably expect questioning unless we’re going to go the unisex bathroom route.

Damned if it does, damned if it doesn’t; up against a law firm using a bazooka to kill a mosquito; and in a neighborhood where being on good terms with the gay community is important for business relations, the restaurant, facing weekly pickets from the Queer Justice League, rolled over and settled for $35,000 + $15,000 in attorney’s fees, which will eventually be extracted from the restaurant’s clientele in the form of higher prices. (Jennifer 8. Lee, “Sexual Stereotypes, Civil Rights and a Suit About Both”, NY Times, Oct. 10; Jennifer 8. Lee, “Woman Wins a Settlement Over Her Bathroom Ouster“, NY Times, May 14; Andy Humm, “Calls to Boycott Caliente Cab Company”, Gay City News, Jul. 19).

I ate at the Caliente Cab Co. on Bleecker in the summer of 1988 when I lived on 12th and University; next time I’m inclined to eat there, I’ll let them throw me out of the restaurant for a fraction of what they paid Ms. Farmer. (Similarly: Gothamist commenters.)

The good news is that the legal problems of New York’s poor and non-profits have been so thoroughly resolved that a law firm can devote substantial pro bono resources to punitively harassing a small business over a bouncer’s not especially unreasonable misunderstanding, and has successfully trained a couple of young associates that they can file a lawsuit to extract tens of thousands of dollars over a $50 dispute. Do Morrison & Foerster’s clients know that this is the kind of litigation they’re subsidizing?

Previously on pro not-so-bono: October 2004.

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1 throckmorton 05.16.08 at 8:35 am

I can only imagine what will happen next with our activist courts. “Male” and “Female” bathrooms will be determined to be un-Constitutional as they dicriminate based on sex and we will be forced to have “unisexual rooms”. Further any business that had “Male” and “Female” restrooms will be found to retrospectively committed discrimination and will be sued.

2 econo-bill 05.16.08 at 10:14 am

A small point: unless you believe that the restaurant business in manhattan is not competitive, or that the owners/managers of Caliente are not profit-maximizers, the owners will be taking the entire hit in the back-pocket. To the microscopic extent that the entire industry will increase prices to deal with the expected cost of recurrences of this sort of foolishness, you are right that customers will pay in the form of higher prices, but this effect will be so microscopic that it illuminates your point that there is no public good in this one. (The idea that the whole industry will introduce the proactive measures that Caliente agreed to – or that Caliente’s introduction of them on its own – constitutes “public good” needs some heavy duty evidence before I will believe it.) And with no public good, the plaintiff lawyers have effected an inefficient transfer of wealth from the Caliente owners to the oh-so-wronged-in-a-completely-unforeseeable-way plaintiff.

3 E-Bell 05.16.08 at 11:46 am

I’m sure this kind of thing has been commented on before, but is it really “pro bono” if the settlement includes attorney’s fees?

4 Bob Neal 05.16.08 at 9:32 pm

You think we don’t already have rulings that male/female only bathrooms are illegal? Think again.

If someone who is anatomically male identifies as a female, employers must allow them to use the women’s restroom and those female employees who complain are SOL. It’s a mad world we live in.

5 Zoe Brain 05.19.08 at 1:01 am

I’m Intersexed – with a body neither 100% M nor 100% F.

Neurologically, standard female, which caused problems when I looked male. Long story, I have one of the conditions where that can get better.

When I looked male, I used the male restrooms. Had to use a cubicle of course, I lacked certain essentials.

Now I look female, I use the female restrooms. That matches my passport(s) (I have dual nationality), my medical condition, my OB/GYN’s opinions etc. as well as, well, my self. It does not match my birth certificate nor my chromosomes.

Having seen Ms Farmer on video, I don’t blame the bouncer for being suspicious. her whole demeanour and body language is male, just as mine isn’t. Yet she’s indubitably female, has internal plumbing I wasn’t issued with, and 46xx chromosomes.

I do blame the bouncer not just for the battery, but the refusal to look at the ID, or any other evidence. He not only threw Ms Farmer out, but her dining companions too, insisting they pay for food they had no opportunity to eat. For the battery, a few thousand is appropriate. For the humiliation, I think they got off very lightly.

Note that this happened during some sort of “Gay Pride” parade, where people of non-standard appearance were the norm.

6 Steve 05.20.08 at 4:48 pm

I think that they should have refused to pay for the meal.
Let the restaurant call the police (if they dare) and then let the police check her ID and, Voila! problem solved.
Bouncer is, hopefully, profusely sorry, restaurant comps their meals. etc.

Am I being too hopeful?

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