Monday, January 23, 2012

Fired for Wearing a Fake Penis?

When people find out I'm an employment lawyer, they almost always have questions. Those questions are invariably some form of "Can my employer fire me for __________." I can assure you that I have never been asked, "Can my employer fire me for . . . wearing a fake penis to work?"

A new case just filed in federal court in Scranton, Pennsylvania may just provide the answer. HT: Law and Daily Life for the details. A female line worker for J&J Snack Foods claims she is taking steps toward a sex change. Apparently, one of those steps is wearing a prosthetic penis while she works. Her lawsuit alleges that her fake penis was the reason she was fired.

She claims nobody could tell she was wearing it and that it didn't interfere with her work. How did the employer find out? The employee confided in a few co-workers and somehow the word spread. Unsolicited advice: when you tell your co-workers you're wearing a fake penis . . . word is gonna spread!

So, how does this become a lawsuit? She alleges discrimination on the basis of gender and gender identity. "Gender identity" is not a protected class per se under Pennsylvania law (PHRA) or federal law (Title VII). But, some transgendered plaintiffs have had success framing their cases as a form of gender discrimination. The plaintiff here also claims that a male co-worker who wore women's clothing and prosthetics to make him look female was treated differently.

With any luck, this will go all the way to the Supreme Court so I don't have to worry about finding good blogging topics for the next few years!

Image: Those are J&J Snack Foods' SuperPretzel SoftStix of course! Product image used in commentary on J&J.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.