2009 Settlement Agreements

What the Charging Party Alleged

When she was hired by Wal-Mart in 2005, Chrissy Nakonsky explained to her employer that she was a transgender person transitioning from male to female, and that she self-identified as a woman. Although her legal name was Jeffrey, she was permitted to dress according to the women’s dress code, and to wear the name “Chrissy” on her name badge. Then one day in January 2006, a Wal-Mart assistant manager informed her that she would no longer be permitted to dress as a woman or to wear earrings or her hair in a ponytail. Some customers had complained and threatened to stop shopping at Wal-Mart unless she dressed as a man, the manager explained. Wal-Mart’s legal department subsequently advised her that she could not dress as a woman unless she had a doctor’s excuse, and that she would be terminated if she violated the men’s dress code without such an excuse.

On February 23, Nakonsky provided her employer with a note from her doctor, explaining that she is required as part of her transition to live full-time in the female role, including presenting herself fully as female. Two days later, her employer told her that despite the note, she would be required to dress according to the men’s dress code until her driver’s license and social security card said “female.” She asked why the rules kept changing. She was later told that she would be permitted to wear blouses and pants, but no dresses, no earrings and nothing too “feminine.” If she wished to wear a wig, it would have to be approved by management. She was also required to wear the name “Jeff” on her name tag instead of “Chrissy.” On March 20, she legally changed her name to Chrissy, and was allowed to use that name on her badge. In mid-April, she was finally allowed to dress according to the women’s dress code. Nakonsky filed a charge with the Department of Human Rights, alleging that Wal-Mart had discriminated against her on the basis of sexual orientation. “My attire did not conform to the respondent’s or its customers’ stereotyped notions of men and women... though I provided information about the Minnesota Human Rights Act and its requirements, the respondent insisted that they were not compelled to allow me to dress in a way that is consistent with my identified gender,” she stated in her charge.

What the Department's Investigation Found

In answering the charge, Wal-Mart argued that it had acted appropriately and within the law. It had told Nakonsky that she could dress as a woman as long as her attire and presentation was professional, but her woman’s attire was not professional, Wal-Mart determined. The company requires all associates to use their proper name on their names badges, and when Nakonsky legally changed her name, Wal-Mart changed her name badge. Further, when Nakonsky brought in a doctor’s note diagnosing gender dysphoria and was to live full-time as a female, Wal-Mart allowed her to dress and conduct herself as a woman, it maintained.

Under the Minnesota Human Rights Act, sexual orientation includes having an identity or self-image not traditionally associated with one's biological gender. In its investigation, the Department of Human Rights determined that the weight of the evidence indicated that Wal-Mart had failed to treat Nakonsky in a manner that was consistent with her gender identity. It had “belatedly” allowed her to dress according to its women’s dress code, but very conservatively. Although it had required Nakonsky to use her proper or legal name rather than the name she was known by, “Chrissy,” it had allowed other, non-transgendered employees to wear nicknames on their badges. In addition, management knew that co-workers were shunning and harassing Nakonsky because of her gender identity and expression and creating a hostile work environment, but failed to prevent this harassment. Although Nakonsky had eventually left her job at Wal-Mart, she had done so because she had been subjected to intolerable working conditions involving illegal discrimination based on her gender identity. The Department found probable cause to believe that Wal-Mart had discriminated against Nakonsky in violation of the Human Rights Act, and that her termination was a “constructive discharge.”

Terms of Settlement

In a negotiated settlement, Wal-Mart agreed to pay Chrissy Nakonsky $12,000, and to provide training at the store where Nakonsky had worked for salaried members of management on employer obligations under the Human Rights Act regarding discrimination on the basis of sexual orientation.

This settlement agreement does not constitute an admission of any liability, an admission of a violation of the Minnesota Human Rights Act or any other law, or an admission of wrongdoing by the respondent.