Wednesday, July 31, 2013

OPM Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace

The Office of Personnel Management has issued a policy statement addressing issues pertaining to transgender employees in the federal government.  In particular, OPM reiterates the anti-discrimination policy of the federal government, which includes a prohibition against discrimination on the basis of gender identity and sexual orientation.  (Keep in mind this is only a policy; it does not create substantive rights for transgender individuals.)
The policy begins by defining gender identity (“the individual's internal sense of being male or female”), transgender (“people with a gender identity that is different from the sex assigned to them at birth”), and transition (“individuals [who] find it necessary to transition from living and working as one gender to another”).  Transitioning individuals are not limited to those changing gender through surgical procedures, but also include those employing therapy, hormones, or some combination thereof.  Perhaps the most significant moment of the transition with respect to employment is when the employee transitions to living full-time in the gender with which they identify.

OPM acknowledges that confidentiality and privacy are significant issues for a transitioning employee.  They may be concerned about the impact on or loss of employment and about safety or harassment in the workplace.  Managers should take the utmost care to respect and protect the employee’s right to privacy, just as they would for any employee.  A trainer may be a useful tool for all employees to address questions, concerns, and rights.  A frank discussion with the transitioning employee can be helpful to ascertain his or her concerns about the workplace.

With respect to dress codes, a transitioning employee should adhere to the codes applicable to the gender to which they are transitioning.  Similarly, any new name and the applicable new pronouns should be used at all times.  OPM also provided guidance on correcting agency records to reflect the employee’s new name and gender change.  Insurance coverage does not change for the employee or for their validly married spouse at the time of the transition.  OPM’s Insure website or Insurance program office can assist with any questions.

Bathrooms seem to cause particular angst for the non-transitioning employees.  An employee who has transitioned to living full-time in the gender consistent with their gender identity, should be allowed access to the bathroom and locker room used by that gender.  There is no requirement that the transitioning employee provide proof that they have reached any particular point in their transition (i.e., proof of gender reassignment surgery).  “Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, or located at an unreasonable distance from the employee's work station.”  If an agency has any questions, it should contact OPM for guidance.

In sum, federal managers and employees are expected to treat transitioning employees with dignity and respect just as they would any other employee.  Questions are to be expected and should be addressed promptly in order to ensure a functional work environment for all.  Kudos to OPM for having the foresight to address this workplace issue.

OPM’s policy can be found at:

Monday, July 22, 2013

OSHA orders reinstatement for lead-safety whistleblower

The Occupational Safety and Health Administration (OSHA) last Wednesday ordered a Bedford Heights, Ohio, restoration company to reinstate a former employee and awarded him $161,000 in a whistleblower protection case over a lead-paint abatement renovation.

Vernon Frye was a Project Supervisor for Coit Services of Cleveland, Ohio. He has US EPA certification to perform and supervise lead-safe renovations.  In December 2011, Frye was supervising the restoration of a flood-damaged home in Shaker Heights, Ohio. The property was older than 1978 when lead-based paint was banned. Therefore, it required the use of lead abatement practices such as HEPA machines to collect airborne paint particles, waste collection in sealed bags, verified cleaning procedures and compliance record-keeping. 

Frye reported to his supervisor, Mr. Mark Iwanycki, that the staff had refused to follow his directions to comply with these EPA rules for lead abatement. Coit sent Frye home the day after he raised these concerns, and then fired him a few days later.  Coitʼs president,  Harvey Seigel, falsely claimed that Frye had resigned.

Frye filed a whistleblower retaliation complaint with OSHA. OSHA investigates lead paint whistleblower claims under the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622, and the Clear Air Act (CAA), 42 U.S.C. § 7622. These laws prohibit employers from retaliating against employees for any protected activities that try to further the purposes of these laws.

OSHA concluded that Frye, ʻʻengaged in protected activity under TSCA when he raised concerns to [Coit] that they were not properly following EPA required practices regarding lead abatement.ʼʼ OSHA ordered Coit to ʻʻreinstate Complainant to his former position with all the seniority, pay, benefits, and rights he had prior to discharge.ʼʼ OSHA also awarded Frye $161,000 in back pay, attorneysʼ fees and compensatory damages.

ʻʻOSHAʼs order to reinstate Vernon Frye protects the right of every employee to stand up for public safety,ʼʼ said Fryeʼs attorney, Neil Klingshirn of the Akron firm of Klingshirn & Fortney. ʻʻThe federal environmental laws are outdated and need to be modernized,ʼʼ said Fryeʼs attorney, Richard Renner of the Washington, DC, firm of Kalijarvi, Chuzi, Newman & Fitch. ʻʻFor example, these laws require whistleblowers to file their complaints within thirty (30) days while modern laws allow 180 days to file a complaint,ʼʼ Renner added. ʻʻFrye was fortunate to find where and when to file a complaint.ʼʼ Airborne dust of lead paint can cause nervous system damage, stunted growth, kidney damage, and delayed development. It is dangerous to children because it tastes sweet. Once children to put lead dust in their mouths, they are likely to continue consuming more. Lead paint is also dangerous to adults and can cause reproductive problems in men and women. The USEPA's America's Children and the Environment, p. 19, reports that 15% of America's children under six years old lived in a home with lead paint dust.1 ʻʻI am so pleased for this decision,ʼʼ Frye says.  ʻʻI hope other workers can find the courage to stand up for whatʼs right without the fear of retaliation.ʼʼ As a matter of policy, OSHA will not release the names of whistleblowers. Frye, through his attorneys, chose to release the OSHA determination in his case.