Transgender Worker Fired After Surgery Has Leave Claim

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By Patrick Dorrian

A transgender worker in California says he was fired eight days after returning to work following phalloplasty surgery. A federal judge says the man adequately stated a leave interference claim against his former employer ( Duane v. IXL Learning, Inc. , 2017 BL 160191, N.D. Cal., No. 17-00078, 5/12/17 ).

The case illustrates that workplace bias claims by transgender workers aren’t limited to allegations that they experienced discrimination based on their gender identity or sex. Instead, such workers increasingly are bringing claims for denial of employer-provided insurance coverage for gender reassignment surgery and other medical care.

Adrian Duane asserts a claim under the Family and Medical Leave Act that educational technology provider IXL Learning Inc. interfered with his right under that law to take job-protected leave for his surgery, which involves the construction or reconstruction of a penis. IXL isn’t entitled to dismissal of Duane’s claim, the U.S. District Court for the Northern District of California held May 12.

Duane’s allegations that his firing closely followed his return from leave is sufficient to state a claim for interference under the FMLA, the court said. Duane had the surgery as part of his “gender confirmation” process, according to his complaint.

IXL said it fired Duane because of disparaging comments he made about the employer on company ratings website Glassdoor. Duane wrote on the site that workers will find themselves on the outside at IXL unless they’re family-oriented, white, Asian, straight or “mainstream gay.”

Duane also adequately stated a claim for wrongful termination in violation of California public policy, Judge William Alsup added. That claim wasn’t preempted by a prior National Labor Relations Board ruling against Duane on his assertion that his posting on Glassdoor was protected concerted activity under federal labor law, the judge said.

David Marek of the Marek Law Firm in Palo Alto, Calif., represents Duane. He told Bloomberg BNA in a May 15 email that his client had no comment on Alsup’s ruling.

One of IXL’s attorneys, Jeffrey D. Wilson of Young Basile Hanlon & MacFarlane P.C. in Troy, Mich., told Bloomberg BNA in a May 15 email that the company declined to comment.

Natasha M. Lockhart of Young Basile in Troy and Robert Randy Wertz of Imai, Tadlock, Keeney & Cordery LLP in San Francisco also represent IXL.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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