Dual Identity
rk
9 Posts
One of my Branches interviewed and hired a male Telemarketer. When the individual came back the next day he was now dressed as a she. The drivers license does show he is a man. We have no issue with this, but may Manager is concerned because he is using the women's restroom and it is making other employees uncomfortable. Can we address this issue without opening us up to a potentail lawsuit?
Comments
As I recall, their is a specific point in the transgender process for a pre-op to begin using the women's restroom. It isn't just when they decide to do it, it has to do with what stage of the game they are in. I believe significant counseling is involved and I believe they are advised to bring their employer in on this so misunderstandings are minimized.
I am sure others have a better memory than I, but it is ok for you to sit down with the EE to get a handle on this. Find the other threads first though, good information and discussion abounds therein.
Unfortunately, your situation is probably not that simple, or you'd have already considered that.
As far as litigation is concerned, a brief bit of Google research turned up a 2001 Minnesota case, Goins v. West Group. In that case, despite the fact that Minnesota has explicit protection for transgender persons in employment and public accomodations, the MN Supreme Court found an exception to that law for bathroom use and held that bathroom use is based on sex and, therefore, can be based on physical anatomy. It's not NY, but it does indicate that bathrooms are still a touchy subject, even when transgendered persons are specifically protected.
With that said, though, the problem I see with this is enforcement. Consider the possibility that an employee may be transsexual and undergoing medical gender transition -- this person's legal status on the drivers' license may say "male," but medically, the person may be well on the way to becoming female. Verifying this would require quite a bit of personal questioning and, perhaps, medical documentation. I'm not sure that I would want to go this far. It is also important to remember that not all transgendered persons seek transitional surgery.
So my thought is that if the employee is allowed to exhibit his preferred female gender identity in dress while at work, then the same employee should be permitted to use the restroom consistent with the person's gender identity so long as no safety risk is presented. Those employees who feel uncomfortable with the situation should certainly report any threat upon their safety, but as far as their attitude-based comfort is concerned, it seems that someone is going to feel uncomfortable in the situation no matter which restroom your employee chooses, so hopefully these are issues that can resolve themselves with time and education.
Holly Jones
Attorney Editor
M. Lee Smith Publishers, LLC
What right does a person have to apply for a job as one gender and then come to work dressed as the opposite gender?
At the very least, I think this individual should have been up front and honest about his alternative appearance.
However, your state of NY has had some judicial rulings where gender discrimination has proven to be actionable.
Here is a link to an article that discusses transgender law and mentions the NY case: [url]http://www.alrp.org/downloads/AIDS Law- Transgender Law.pdf[/url]
>this applicant to apply as a man and then show
>up dressed as a woman.
>
>What right does a person have to apply for a job
>as one gender and then come to work dressed as
>the opposite gender?
>
>At the very least, I think this individual
>should have been up front and honest about his
>alternative appearance.
>
>However, your state of NY has had some judicial
>rulings where gender discrimination has proven
>to be actionable.
>
>Here is a link to an article that discusses
>transgender law and mentions the NY case:
>[url]http://www.alrp.org/downloads/AIDS Law- Transgender Law.pdf[/url]
It does seem deceptive and if he is indeed a transgender he should've dressed as a female for the interview. I'm sure he didn't decide overnight to change.
As far as his "right" to do that, sure he can unless there is a BFOQ that would preclude him from dressing like that. We have a female that has a problem with facial hair. If she doesn't want to remove it she has every right not to, it's just not considered socially acceptable.
We had an employee who went through the transgender process. Everything was done in steps and when he got to the point where he was going to dress as a woman that's when he notified us. As far as restroom use we said he would use the women's restroom. The transition was handled thoughtfully and he was relieved that everything went smoothly.
Even after he changed his name to a female's we did have to officially keep his gender as male. In order to change that the birth certificate would have to be changed and in Ohio that is only allowed if there was a mistake in the date or name when it was originally issued. It is not allowed to be changed for gender re-assignment.
The issue will be as she staed, with other employees, and I would see where education can be difficult without infringing upon the target employee's privacy.
In Kentucky there is no anti discrimination regs based on sexual preference, but there is in Jefferson County (Louisville Metro).
It is a difficult problem, especially with the effects on the employee's ability to interact with other workers, and for them to take him seriously.
The reason I ask is that last year my wife took our 9 year old daughter to the hospital and the visiting physician was very obviously a man dressed as a woman. Sequined shoes, bright red wig, exagerated feminine mannerisms. My wife thought she was on candid camera at first.
Besides the fact that this doctor gave our daughter only a cursory examination, my wife was extremely upset. Can you imagine the confusion that would have been created in the mind our young daughter had she realized that the woman doctor who was treating her was actually a man?
If the hospital appointment desk had simply said "Dr. Burnett has an alternative appearance. If you are uncomfortable, we can arrange an appointment with a different physician." that would have been considerate and we would have re-scheduled.
The letters I sent to the president of the hospital and its board only resulted in a polite response about valuing diversity.
As to the doctor with sequined shoes, I would have told her that her attire was not business appropriate or professional attire. We do not have a dress code except for "professional business attire appropriate for the workplace". We have employees who try to wear flip flops & I tell them they can't and warn them that next time they'll be sent home to change on their time.
Holly Jones
Attorney Editor
M. Lee Smith Publishers, LLC
In my opinion these are very complex "adult" issues and children should not be exposed to them unless the parent has consented.
The current trend would probably indicate that more and more states will add transgendered protections to their state and city statutes.
Interestingly, here in Oregon, the city of Eugene has set aside plans to enact transgendered protection when the task force assigned to writing the legislation could not agree on language and terminology.
If its confusing for them, its just as confusing for employers.
Exactly. I would prefer to be the one to talk with my child about something like this when I feel its the appropriate time and my daughter is able to understand.
That's why I feel as a parent I should have been notified so that I could have made that decision rather than have it made for me.
I understand this, but it comes back to my previous post-what do you do when you are walking down the street and your child sees this happen? You cannot control every environment that your child is in when in public. If I was a good lawyer-that is what I would bring up if this ever went to court.
Good luck.