Pride and Posture

Q: I am a transgender individual—anatomically male, but I identify as female—and I am preparing for sexual reassignment surgery. My general attire is that of a woman. I work in a trendy Seattle restaurant and had no problems for three years until a new floor manager was hired. He told me last week that he would prefer I dress as a man until my surgery because “it’s too obvious [I’m] a drag queen.” Do I have a right to refuse this absurd request?

– Incensed by Insensitivity

Vancouver, WA

A: The Supreme Court ruled in 2020 that you cannot be discriminated against in the workplace for being transgender. The implications of this decision are still being worked out through the courts. Washington is also one of a number of states which consider sexual orientation (including gender identity) a protected class. This means discrimination on this basis is now illegal in employment, housing, public accommodations, credit and lending, and insurance. Your new floor manager may have caused your employer some serious problems by singling you out and requesting you dress differently. It would have been reasonable for your manager to have requested that you tone down your makeup if he felt it was too much. There are certainly many anatomical females who have shown up to work wearing too much cosmetics and have been asked to go more au natural. Assuming the clothes you wear are as otherwise work-appropriate as your co-workers, your employer really doesn’t get a say in whether they’re men’s or women’s, regardless of what’s under them! 

Q: One of my employees just gave me a request for an ergonomic chair from her doctor; she’s been getting back pain from sitting at her desk all day. I asked her a few questions about the extent to which her back pain impedes her ability to do her job or other things. She basically admitted to me that it’s mostly uncomfortable, but not an impediment to her daily life activities. She said she wants to take measures to prevent future back injury or pain. This is obviously not a disability under the Americans with Disabilities Act, so am I required to get her this chair? The one she wants is about $800!

Irked by Ergonomics

Missoula, MT

A: From the way you handled the situation and evaluated your employee’s potential disability, it sounds like you’ve been keeping up with this column!  You’re correct in that your employee would not currently be considered disabled under the Americans with Disabilities Act (ADA) because she doesn’t have an impairment that is substantially limiting in one or more major life activities. So, you wouldn’t be required by that law to accommodate her. Ergonomics is a big business these days, and it’s not because a bunch of medicine shows are going around peddling correct posture to cure all that ails you. There is mounting evidence that employers who attempt to adjust the work environment to meet employees’ ergonomic needs save money in the long run by racking up fewer workers’ compensation claims and other legal fees (usually charged for defending against claims of failure to provide reasonable accommodations for employees who believe they are entitled to them). OSHA has developed a program to support businesses in their compliance with regulations designed to prevent workplace injury (including back problems and repetitive stress injuries). Your best bet would be to consider the cost of the chair compared with the cost of a future workers’ comp claim or a citation from OSHA or a state agency for failure to make a good-faith effort to prevent workplace injuries. 

The most common cause of work-related disability among office workers in people under 45 is lower back pain, according to one study. May is Correct Posture Month—a perfect time to make a new ergonomic resolution!  

(This article was originally published in the column Watercooler Counsel with Malinda Tuazon as a co-author. It has been included here with minor updates.) 

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