Workplace Q & A: Part 6

Q: Now that I have become a woman, do I still have to wear men’s clothes to work?

“I am in the process of gender reassignment. Now that I look like a woman instead of a man, I have recently been wearing women’s clothes to work. This afternoon, my manager took me aside and warned me, ‘Too many of your fellow employees and too many of our clients knew you as a man. Seeing you in women’s clothes makes them uncomfortable. So, you can wear whatever you want after work. But you’ll have to come to work here in men’s clothes.’ Do I have to obey my manager and wear men’s clothes to work?”

A: No.

You are allowed to dress in a manner that is consistent with your gender identity. A business can have a dress code. It can forbid torn or soiled clothing, beachwear, or tee shirts with offensive images. For employees in client-facing positions, it can prohibit multiple visible piercings and tattoos. But it cannot dictate your identity. Your fellow employees and clients will have to get used to it.

Q: During my probationary period, can I be fired without any warning or any explanation?

“When I was hired, I was told that my new job had a 90-day probationary period. During that time, I never received any warnings or criticism of my performance. When the 90 days were almost up, I was called into my manager’s office with no advance notice and fired on the spot. The worst part was that I received no explanation. Can my manager do this?”

A: Yes.

There is no law that governs the duration or the specific conditions of a probationary period. Some probationary periods last 2 weeks, while others last 6 months. Some might provide that the employee on probation must receive a warning before termination. But in all likelihood, your probationary period permitted your company to terminate you for unsatisfactory performance within 90 days without going through any of the standard procedures in its human resources manual. And in all likelihood, you won’t be eligible for severance pay either.

However, during a probationary period, your employer cannot treat you unfairly because of your race, sex, age, national origin, disability or sexual orientation. If discrimination becomes an issue, your company may have to show that you received proper training and that you were given an opportunity to correct your deficiencies.

A company would be well advised to discontinue its use of probationary periods for new hires. It would be better instead to give all employees the same notice of deficiencies and the same opportunities for training and new assignments. That would clear the air of any possibility that the company wanted to get rid of an employee for an improper reason.


Q: Can a company make me go through four interviews, complete two preliminary job assignments and produce five references before it decides to hire me?

“I recently applied for a job as a communications officer. I had to undergo four interviews with people in different parts of the company. Then I had to complete a job assignment to demonstrate my communication skills. Then I was asked for five references. And now they want a second writing sample. Can a company require me to jump through all these hoops? What if they don’t hire me?”

A: Yes.

A company can establish whatever requirements it wants, so long as they’re connected to the job you’re applying for. In our new age of multiple applicants for each job, employers can be super-picky. They want to turn over every stone.

It’s entirely possible that you won’t get the job. It happens all the time and for a variety of reasons. The company might ultimately decide it can do without another employee. It could decide instead to hire internally. Or it could decide to hire a friend of the CEO.

In fact, the company might find your preliminary assignments to be quite valuable. It could use your work product without hiring you. That’s a risk you’ll have to take if you want to be considered for the job.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.


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