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dolariWell, I'm gone from Harte Hanks. They were unwilling to acommodate me. I was unwilling to use the men's room. I did not quit (I always said I'd be happy to come to work if they changed the policy or made an exception), they released me.
So. What do we do from here?
On advice from a lawyer, I'm filing an OSHA complaint. Their (unwritten) policy would have put me in harm's way, and if OSHA ain't for that, what's it for? It won't do much for me other than slap Harte Hanks' wrists, but at least it's a beginning.
In the menatime, I'm reading up on some info:
C. Restrooms: Call the Employer’s Bluff and Then Call OSHA
The issue of restrooms and criminal law, along with construction of facilities within business establishments, was previously discussed in detail. I articulated the issue in the context of my experience with many employers who want to retain transgendered employees through their transition or who want to hire an openly OUT transgender. Even if these employers may wish to use the Branch Rickey approach[357] to do what they feel is humane and economically advantageous, the employers may have already talked to friends, personnel staff and lawyers about concerns over the perceived obstacles. As a result of these talks, the employers may still balk at the restroom issue and either fire or refuse to hire transgenders.
Any transgender fired over the issue of which restroom to use,[358] however, has a legitimate complaint to file with OSHA.[359] Unfortunately, the Occupational Safety and Health Act[360] does not allow an employee to file a private cause of action.[361] Nonetheless, any formal complaint filed by transgenders fired over the restroom issue should be taken seriously, and it is important that such complaints are filed so OSHA is aware of the violation.[362]
When an employer balks at retaining a transitioning transgender, the employer frequently will not allow the employee to use the restroom intended for the new gender presentation. The employer will not fire the transitioning transgender, however, because a person who quits a job has less chance of winning unemployment compensation or successfully suing for wrongful discharge. This means that the transitioning employee must continue to use the restroom assigned to the pervious gender presentation or quit the job. In my experience, almost all transgenders quit when faced with this scenario.
If the employer insists that the employee either use the previous gender restroom or quit, the transgender should call the employer’s bluff and use that restroom. Experience proves that such a situation will not last long. Usually the employer will either fire the employee, opening the way for unemployment compensation and an OSHA complaint, or will find a reasonable ad hoc solution to accommodate the parties.[363]
In summary, if an employer refuses to accommodate a transgender’s restroom needs, the employee should call the bluff and agree to the employer’s demand as to which restroom to use. If the location of that restroom is unreasonable, unclean, not properly maintained, if the locks on the stalls do not function, if the transgender employee is threatened with assault or assaulted, or if the employee is fired, the employee should file a complaint with OSHA and attempt to collect unemployment compensation. The employee may have a potential EEOC claim if the complaint is couched in terms of having been fired based on an OSHA complaint. When the transgender employee files the complaint, she should be sure to have a copy of Schwenk in her hands as well. By using these ideas to advance their position, transgenders will be able to overcome the hypocritical Cider House Rules imposed on them by law and society.
[357]. See discussion supra notes 232-33.
[358]. This refers to firings based only on the restroom issue, when the firing is not otherwise illegally discriminatory by some local or state statute and does not breach the company’s written procedures for a due process claim.
[359]. See sources cited supra notes 250-51; Occupational Safety & Health Act, 29 U.S.C. § 654(a) (1994) (“Each employer —(1) shall furnish to each of his employees . . . a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter.”).
[360]. Occupational Safety & Health Act, 29 U.S.C. §§ 651-78 (1994).
[361]. Taylor v. Brighton Corp., 616 F.2d 256, 264 (6th Cir. 1980).
[362]. In an April 2000 telephone conversation, an OSHA Compliance Officer told me that the biggest problem with compliance is that employees do not file complaints. Although a transgender fired over the restroom issue will not be able to bring a private cause of action to recover for the violation of OSHA, it is important that the person notify the Occupational Safety and Health Administration of the violation.
[363]. Why am I so certain that this will be the reaction? In the early days of my transition, I was not a lawyer and able to understand exceptions in the restroom ordinance. When the local anti-cross-dressing ordinance was still in effect, I deliberately decided to continue to use the men’s public restroom. In the first few mens’ restrooms I entered during those earliest days of my transition, the response was an audible “yipe!” and a stampede out the doors.
I'm also using info from http://www.batlaw.org/Schwenk.htm to make an argument for "A Man can be hurt as a woman." With the two, I can lodge a fairly sturdy complaint.
I wonder if the Rule of Three still counts in the name of Justice.
As for the rest of my day - I'll get to that tonight.
So. What do we do from here?
On advice from a lawyer, I'm filing an OSHA complaint. Their (unwritten) policy would have put me in harm's way, and if OSHA ain't for that, what's it for? It won't do much for me other than slap Harte Hanks' wrists, but at least it's a beginning.
In the menatime, I'm reading up on some info:
C. Restrooms: Call the Employer’s Bluff and Then Call OSHA
The issue of restrooms and criminal law, along with construction of facilities within business establishments, was previously discussed in detail. I articulated the issue in the context of my experience with many employers who want to retain transgendered employees through their transition or who want to hire an openly OUT transgender. Even if these employers may wish to use the Branch Rickey approach[357] to do what they feel is humane and economically advantageous, the employers may have already talked to friends, personnel staff and lawyers about concerns over the perceived obstacles. As a result of these talks, the employers may still balk at the restroom issue and either fire or refuse to hire transgenders.
Any transgender fired over the issue of which restroom to use,[358] however, has a legitimate complaint to file with OSHA.[359] Unfortunately, the Occupational Safety and Health Act[360] does not allow an employee to file a private cause of action.[361] Nonetheless, any formal complaint filed by transgenders fired over the restroom issue should be taken seriously, and it is important that such complaints are filed so OSHA is aware of the violation.[362]
When an employer balks at retaining a transitioning transgender, the employer frequently will not allow the employee to use the restroom intended for the new gender presentation. The employer will not fire the transitioning transgender, however, because a person who quits a job has less chance of winning unemployment compensation or successfully suing for wrongful discharge. This means that the transitioning employee must continue to use the restroom assigned to the pervious gender presentation or quit the job. In my experience, almost all transgenders quit when faced with this scenario.
If the employer insists that the employee either use the previous gender restroom or quit, the transgender should call the employer’s bluff and use that restroom. Experience proves that such a situation will not last long. Usually the employer will either fire the employee, opening the way for unemployment compensation and an OSHA complaint, or will find a reasonable ad hoc solution to accommodate the parties.[363]
In summary, if an employer refuses to accommodate a transgender’s restroom needs, the employee should call the bluff and agree to the employer’s demand as to which restroom to use. If the location of that restroom is unreasonable, unclean, not properly maintained, if the locks on the stalls do not function, if the transgender employee is threatened with assault or assaulted, or if the employee is fired, the employee should file a complaint with OSHA and attempt to collect unemployment compensation. The employee may have a potential EEOC claim if the complaint is couched in terms of having been fired based on an OSHA complaint. When the transgender employee files the complaint, she should be sure to have a copy of Schwenk in her hands as well. By using these ideas to advance their position, transgenders will be able to overcome the hypocritical Cider House Rules imposed on them by law and society.
[357]. See discussion supra notes 232-33.
[358]. This refers to firings based only on the restroom issue, when the firing is not otherwise illegally discriminatory by some local or state statute and does not breach the company’s written procedures for a due process claim.
[359]. See sources cited supra notes 250-51; Occupational Safety & Health Act, 29 U.S.C. § 654(a) (1994) (“Each employer —(1) shall furnish to each of his employees . . . a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter.”).
[360]. Occupational Safety & Health Act, 29 U.S.C. §§ 651-78 (1994).
[361]. Taylor v. Brighton Corp., 616 F.2d 256, 264 (6th Cir. 1980).
[362]. In an April 2000 telephone conversation, an OSHA Compliance Officer told me that the biggest problem with compliance is that employees do not file complaints. Although a transgender fired over the restroom issue will not be able to bring a private cause of action to recover for the violation of OSHA, it is important that the person notify the Occupational Safety and Health Administration of the violation.
[363]. Why am I so certain that this will be the reaction? In the early days of my transition, I was not a lawyer and able to understand exceptions in the restroom ordinance. When the local anti-cross-dressing ordinance was still in effect, I deliberately decided to continue to use the men’s public restroom. In the first few mens’ restrooms I entered during those earliest days of my transition, the response was an audible “yipe!” and a stampede out the doors.
I'm also using info from http://www.batlaw.org/Schwenk.htm to make an argument for "A Man can be hurt as a woman." With the two, I can lodge a fairly sturdy complaint.
I wonder if the Rule of Three still counts in the name of Justice.
As for the rest of my day - I'll get to that tonight.
