AFTER-EFFECTS OF AFTER-HOURS ACTIVITIES: THE CASE OF PETER

AFTER-EFFECTS OF AFTER-HOURS ACTIVITIES: THE CASE OF PETER OILER
Few people question an employer’s right to control an employee’s behavior on the job. However, when an employer takes action based on an employee’s off-duty conduct, questions of ethics arise. More than half of all states prohibit firing based on various types of afterhours conduct.1 Federal law prohibits firing that is discriminatory. Some cases, however, fall through those cracks. If you were the judge in the Peter Oiler lawsuit, how would you rule? Work History. By all accounts, Peter Oiler was a good worker.
Hired in 1979 to drive a truck for Winn-Dixie, his responsibilities included driving a 50-foot truck, loading supplies from the company warehouse, driving them to Winn-Dixie stores throughout southeastern Louisiana, and unloading them. Oiler received above-average performance ratings and was promoted three times during his tenure at Winn-Dixie. He adhered to company policies in all ways, including his attire and his presentation.2 In his private time, Oiler liked to take on the persona of “Donna” at home, donning women’s clothing, accessories, makeup, wigs, and fake breasts. Though he usually stayed home, Oiler would sometimes go out as Donna with his wife and friends to restaurants, the shopping mall, or church.3 The Situation Arises. In 1999, Oiler had a meeting with his supervisor, Greg Miles.
A year earlier, Oiler had been bothered by a rumor that had been circulating that Oiler was gay, and so he asked Miles to take action against it. At the meeting, Miles asked if the rumors had subsided, and Oiler said that they had. Miles asked Oiler why the rumors bothered him, and Oiler said it was because he is transgender instead of gay. When Miles asked what transgender was, Oiler explained that it refers to people who have feelings about their gender that are sometimes inconsistent with their anatomical sex. Oiler added that he had no intention of ever changing his sex or living as a woman full-time.4 He was a happily married, heterosexual man, about to celebrate his 25th wedding anniversary.
Winn-Dixie Responds. Miles said he would have to check the company policy about transgender employees. On November 1, 1999, Miles informed Oiler that a supervisor had seen Oiler dressed as a woman off duty. Oiler said that he did sometimes dress as a woman but never on duty. Miles responded that Oiler’s activities could harm Winn-Dixie’s image, and so the company was asking him to resign. He recommended that Oiler look for another job. Oiler said he did not want another job, because he was happy at Winn- Dixie. He continued to work in his position. From November 4, 1999, to January 5, 2000, Winn-Dixie managers had five meetings with Oiler. They told him to find another job, because he was about to be terminated. They said they had no problem with his work performance, but his off-duty dressing as a woman could hurt Winn-Dixie’s public image. Oiler reiterated that he would not wear women’s clothing at work. At the January 5, 2000, meeting, Oiler was terminated.5 The Aftermath. Oiler sued Winn-Dixie for gender discrimination.
He argued that the company fired him because he did not fit the company’s gender stereotype of a man. Ken Choe, an American Civil Liberties Union attorney who represented Oiler, said, “Everyone agrees he was not terminated for anything related to his job performance. All of the cross-dressing behavior occurred off the job.” In September 2002, a federal judge in New Orleans ruled that transgender people are not a protected class, and so laws against sex discrimination do not apply to them.6 Although Oiler lost in court, he may have won the battle for public opinion. According to Oiler, “Quite a few people told me, ‘You’re not hurting anybody. You do your job extremely well. How can they do this?’” Oiler adds that Winn-Dixie’s reaction has made other workers feel less secure. “The common theme (among former coworkers) was, ‘If they can get away with this, what can they do to me?’ It’s got a lot of people saying, ‘Where’s the limit?’”7
Addendum. In 2007, Representative Barney Frank (D-MA) sponsored HR 2015, the Employment Nondiscrimination Act (ENDA). The purpose of this legislation is to prohibit employment discrimination on the basis of actual or perceived sexual orientation or gender identity.8 The proposed legislation does not apply to religious institutions or the armed services. It prohibits preferential treatment or quotas and allows only disparate treatment claims. At this writing, it has been referred to committee.
Questions for Discussion
1. What are the ethical issues in this case?
2. Who are the stakeholders, and how are they impacted by this situation?
3. Do you agree with the federal judge’s decision? If you were the judge, what would you do?
4. A recently passed ordinance in New Orleans prohibits discrimination against off-the-job cross-dressing. However, the Winn-Dixie branch that fired Oiler is located just outside that jurisdiction. Does this affect your answer to #2?
5. For what after-hours behavior do you feel it is appropriate to terminate an employee? For what after-hours behavior is it not appropriate? Where do you draw the line, and how would you describe that line if you were developing a policy to put into an employee manual?