Cross Dressing

CTAYLOR

I have tried searching for previous discussions on the subject but do not get a results. What are the employer rights regarding transvestites in the work place? Is it discriminatory to require men to wear men's clothes only, including no make up, jewrely, etc?

NeedCoffee

We were on the verge of hiring an admitted transsexual a few months ago. In our opinion, there was no BFOQ to requiring them to wear gender-specific clothing/makeup/etc. Where we had the hardest time was deciding about bathroom usage - do you require them to use the mensroom, since they have the "equipment" or do you require them to use the ladies room since they dress like women and gender-identify with females?

Although we went with another candidate who was more qualified in the end, we still went through this process of "how do we accommodate?" There are a few court cases out there on discrimination against transsexuals, transgenders, cross dressers, etc. Take a look at those cases and see how they apply to your company. I believe you have to do what is best for both for customers and your employees. Your corporate culture will probably help you make your decision as well. Remember that this person lives in the outside world as well - ask them how they would like to be accommodated...chances are they aren't planning on telling any of your coworkers, so you need to keep this tightly under wraps.

Good luck!

CTAYLOR

Actually the employee is making it clear to others as he is beginning the process of making the gender change. His attire makes it quite evident to his co-workers. A separate bathroom facility is being used for his needs only.


How can I locate the specific court cases, I do not utilize hrhero that often as we are a small company? What is the appropriate search subject?

Any help would be much appreciated.

Tony Kessler

CTAYLOR, try searching for "gender identity" in "all states" in "2007." You'll get between 25 and 30 hits. If you have any trouble finding the archives or working your way through it, call me at (615) 661-0249 x 8068, and I'll try to help. Tony

CTAYLOR

Thank you so much Tony. Trying to do the right thing for all, individual, employees, customers, etc.

joannie

While sexual orientation is not currently a protected class under Title VII, there is pending federal legislation to afford protection against discrimination. Several states and some localities have laws protecting individuals from discrimination based on sexual orientation or gender identity. I don't believe Indiana law at the present addresses this issue. However, there are several cases where sexual orientation /gender identity claims have been brought under Title VII. You might look at Smith v City of Salem, Ohio (6th Cir. 2004), Barnes v City of Cincinnati (6 Cir. 2005), Rene v MGM Grand Hotel, Inc., (9th Cir. 2002) and Bibby v Philadelphia Coca Cola Bottling Co., (3rd Cir 2001).

Good Luck!

.

SMace

Keep in mind this is a gender identitiy issue and not sexual orientation. The new law coming through does not include gender identity.

Dawgeye

>Keep in mind this is a gender identitiy issue and not sexual orientation. The
>new law coming through does not include gender identity.

Sorry, SMace, you aren't entirely accurate - quite a few states have BOTH sexual preference and gender identity as protected classes ...

SMace

I wasn't referring to state laws. I was referring to the propsed federal law. Last I heard it did not include gender identity.

System

Indiana doesn't have a state law prohibiting discrimination based on gender identity, but there are some municipalities in Indiana (Bloomington and Indianapolis are two that come to mind) that have passed such ordinances. CTAYLOR, be sure to include municipal ordinances in your search for laws prohibiting gender identity discrimination.

Kimberly A. Klimczuk, Esq.

SKOLER, ABBOTT & PRESSER, P.C.
Editors of the Massachusetts Employment Law Letter
(413) 737-4753 Email: [email]kklimczuk@skoler-abbott.com[/email]

This message is not intended as legal advice and does not establish an attorney-client relationship. Readers of this email are encouraged to contact their labor and employment counsel for further information.

Dasher

What are the employer rights regarding transvestites in the work
>place? You are allowed to hire them.

Is it discriminatory to require men to wear men's clothes only,
>including no make up, jewrely, etc? Yes

The above is sort of tongue in cheek -- sorry.

However, the guiding principle is that gender discrimination is illegal.

Earl

Cross dressing in the work place is different than some one going through an operation to change their sex. If some one is giong through this process, aren't there going to be doctor appointments, documentation, possibly FMLA, etc? IMO it would be appropriate to accomodate this person or more correctly to work with this person on dress code issues and such.

But, while it might be discriminatory to require male employees to wear male clothes, it is perfectly legal. Other responders have to remember, it is entirely up to the employer - an employer can indeed tell male employees they are not allowed to wear jewelry or makeup and to wear "male" clothes. It still is the employer who sets dress code policy. Again, perfectly legal.

stilldazed

There are a couple of cases that have been based on gender stereotyping under the umbrella of harassment in the workplace and hostile work environments, I think brought under Title VII and dismissed as not being covered as sexual discrimination. I learned of them in a class I'm taking. They are James v. Platte River Steel Co (10th Cir. Oct 25, 2004) and Medina v. Income Support Div, State of NM, 413 F3d 1131 (10th Cir 2005).

I haven't read either case and both cases were found for the employers. I also am not sure how you might find copies of the court opinions, but if you do there may be some valuable insight reflected in the judges' opinion.

best wishes,

ACU Frank

Check out Etsitty v. Utah Transit Authority.

In this VERY recent appellate decision, the court sided with the employer, who terminated a cross-dressing driver due to concerns that the driver's use of the "wrong" public restrooms on his route could subject the employer to embarassment and liability.

Tony Kessler

In the newsletter archives on this site, you'll find that both Colorado and Oklahoma Employment Law Letters wrote about that case in their November issues. Search for "Etsitty" in "All States" in "2007," and links to both articles will appear. Tony