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The Eighth Circuit recently held that an employer that granted personal rather than FMLA leave to an employee to undergo gender-reassignment surgery did not violate the FMLA. Sanders v. May Dep't Stores Co., 2003 WL 61112 (8th Cir. Jan. 9).
Plaintiff informed his employer in Spring 1998 that he suffered from gender dysphoria, and that he intended to undergo gender reassignment surgery in June. For 4 to 6 weeks before the surgery, plaintiff intended to live as a woman. Plaintiff resigned before the surgery, even after the employer expressed concern over his resignation, given that he had worked there for 13 years. The employer informed plaintiff that he was not entitled to severance pay. Because the departure was voluntary, but that he might be able to qualify for FMLA leave. However, to do so, the plaintiff would have to submit medical certification of the need for leave. Plaintiff declined to submit this certification, citing confidentiality concerns. The employer instead permitted the plaintiff to take 13 weeks of personal leave. Under this policy, the employer was not obligated to hold plaintiff's position open. After undergoing the surgery, the now-female plaintiff sought her previous job, which the employer had not held open. The employer rehired the plaintiff as a senior financial analyst, but terminated her in April 1999 for poor performance.
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