Friday, September 19, 2014

We Are Not Immune

When we transition at work we have to be careful of what we say and where, and also how we behave. As with any employer they are rightly concerned about what their employees say and where they say it. You might claim that you have a First Amendment right to free speech, but if you read the amendment closely it says prohibits the making of any law respecting an freedom of speech, notice it applies only to the government and it says nothing banning employers from limiting what can do.

So when a trans-woman transitioned at an auto dealership as a mechanic, according to Lexology
Plaintiff Jennifer Chavez was hired as a mechanic by Credit Nation Auto Sales in Austell, Georgia (a suburb of Atlanta), when she was Luis Chavez, a man. After a little more than a year on the job, then-Mr. Chavez told management that he intended to undergo gender reassignment. (At this point, we will refer to the Plaintiff as “Ms. Chavez.”) According to Ms. Chavez, management and her co-workers were extremely supportive . . . for about two weeks. During that two-week period, Ms. Chavez even sent an email to a reporter from the Atlanta Journal-Constitution, going on and on about how supportive her co-workers had been, “even the crotchety old southern guys who I thought were set in their ways.” Ms. Chavez also said that, after the co-workers were informed, the owner sent an email reminding them of Credit Nation’s policy against harassment.
And the article goes on to say that she was warned about talking about the Gender Confirming Surgery (GCS) in detail to her co-workers and that she was changing out over her coveralls before the end of her shift. In addition she wanted to use the office bathroom as opposed to the mechanic’s bathroom but the company said that she had to use the mechanic’s restroom. After she fell asleep on the job she was fired.

She then sued for sex discrimination based on Title VII,
Even though the charge was treated as timely, and even though gender identity discrimination is a form of sex discrimination prohibited by Title VII, the court adopted a magistrate’s recommendation and granted summary judgment to Credit Nation based on Ms. Chavez’s “time theft” related to her sleeping on the job. The counselings she had been given were not evidence of prejudice because of her transgender status, the court said, and she had no evidence that sleeping on the job – especially while on the clock – was was not a legitimate ground for discharge. The evidence of the other employee’s termination for the same reason appeared to be critical to this part of the court’s ruling.
I think she got off on the wrong track when she called the reporter because some companies take a dim view of their employees saying anything about the company either good or bad.

The next thing she did wrong was about the bathroom, the bathrooms were basically unisex. There was a bathroom for the office and customers up front and one for the mechanics, since she was a mechanic it was not discrimination based on sex. Since discrimination is defined as doing something different because of her sex, but since the bathrooms were divided by office and shop workers it wasn’t sex discrimination.

But I think that the straw that broke the camel’s back was sleeping on the job and because the company treated other people who slept on the job the same way as other employees it was not discriminatory.

The thing is we have to be on our toes and on good behavior when we transition, and just because we are trans does not mean that we cannot be fired for just cause.

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