Complaint alleges discrimination
Guard wants county recognition as nonbinary
Desiree Pieniazek’s desire to be identified by Schenectady County as nonbinary has prompted the veteran corrections officer to file complaints against the county alleging discrimination and harassment by co-workers who learned of the request.
The county does not appear to have an explicit policy on nonbinary employees, a term that refers to a person whose gender identity falls outside the traditional gender binary or who doesn’t identify as male or female.
“I just don’t feel I’m a
“I told him I don’t like pronouns, that I prefer my name if possible, but he kept on calling me ‘she,’ ‘him,’ ‘her,’ ‘sir,’ and apologizing for it. And then he told me I would have to have a sex change, and I told him that’s against the law.”
Desiree Pieniazek, corrections officer
female; I don’t feel like I’m a male. I do what I like to do — that’s what nonbinary is,” Pieniazek told the Times Union during a recent interview. “The way I want to be recognized is important because I want to be able to be me, and I don’t feel like I can with them telling me who I have to be, and I don’t want to be told who I have to be.”
Pieniazek has filed complaints with the state’s Equal Employment Opportunity Commission and Division of Human Rights. The complaints will be joined together when they are considered by the two agencies.
The case underscores the complexities of what lawyers involved agree is an emerging issue affected by laws related to gender requirements and jail staffing levels, the reason the county contends Pieniazek was denied a bid over the summer for the overnight shift.
Pieniazek is married to Cory Akerson, a former county corrections officer, who attended Pieniazek’s recent interview with the Times Union.
Pieniazek, 34, rejects the use of pronouns such as “he” and “she” as well as “they” and “them.” The latter words are often used by nonbinary people and their allies. Pieniazek instead prefers to be called Desiree or Officer Pieniazek.
Pieniazek wants the county to draft a policy that specifically forbids discrimination against nonbinary people. Albany, Rensselaer and Saratoga counties do not have any clear-cut policies on the books to protect the rights of nonbinary individuals.
In September, not long after Pieniazak filed the complaints alleging gender discrimination, Pieniazak met with union leaders and Frank Salamone, a lawyer in the county attorney’s office.
“I told him I don’t like pronouns, that I prefer my name if possible, but he kept on calling me ‘she,’ ‘him,’ ‘her,’ ‘sir,’ and apologizing for it. And then he told me I would have to have a sex change, and I told him that’s against the law,” Pieniazek said. “He said he didn’t know anything about gender laws, and that he didn’t have any policy or procedure, but that he wanted to come up with one.”
Salamone denied recommending a sex change to Pieniazak.
“What I said was that the insurance would cover that type of surgery if that’s what Desiree was doing. It was informing an employee of their rights under the health insurance policy,” Salamone said. “The issue is how to harmonize the laws that protect employees and the laws that protect the inmates and other employees.”
He also emphasized that “Desiree presents as female and any inmate who’s there would perceive Desiree as female.”
Pieniazek recalled telling Salamone, “I was not looking for money, I was just looking for policy and procedure and rights.”
But over time that changed.
“Desiree was repeatedly told that [the county] would look into it — that they would handle it, that they would have a meeting, that they would draft a policy, that they would get back to Desiree — and they never did,” said Pieniazek’s attorney, Adam Grogan, with the Tully Rinckey firm.
Salamone contends that nonbinary people are covered by a section of the county’s sexual harassment policy that reads, “Sexual harassment includes harassment on the basis of sex, sexual orientation, self identified or perceived sex, gender expression, gender equity, and the status of being transgender.”
He said a section of civil rights law offers employees protections against discrimination based on gender, with one exception being the so-called bona fide occupational qualifications, the rules that regulate genderspecific hiring.
Specifically when it comes to the jail, Salamone said, “These are the minimum positions that must be done by male officers and female officers or perceived male and perceived female officers
for the protection of inmates.”
Part of the challenge, he said, is that the jail “needs to ensure that they have adequate female staffing on all shifts” and there’s presently a shortage of female officers on staff.
Salamone also said county law states that if there is at least one female inmate at the jail, at least one female corrections officer must be on duty. To protect against rape and other potential crimes against prisoners, federal law requires certain tasks at jails be performed by employees of the same gender as the prisoners.
But Pieniazek countered Pieniazek was “hired not to be a female corrections officer but rather a corrections officer in general.”
Grogan said the real issue is that the county and other places need to treat nonbinary employees equitably. “The BFOQ issue doesn’t really get at the heart of the fact that the county does not have any policies related to nonbinary individuals,” said Grogan. “There’s not a lot of places that have policies and procedures for nonbinary employees and it gets hairier when an employer like Schenectady County is claiming to have a bona fide occupation qualification that relates to someone’s gender.”
Pieniazek, who has 12 years on the job, recalled first contacting the county’s human resources department in 2019 about changing the gender identity to nonbinary. The call was not returned.
Pieniazek also contacted the union, the Schenectady County Sheriff ’s Benevolent Association.
Union President Greg Snyder did not return a call Tuesday seeking comment.
Schenectady County Sheriff Dominic Dagostino referred questions to the county attorney’s office.
Harassment has been a factor at the jail, Pieniazek said.
According to the complaint, Officer Lisa Walsh, who is married to jail Superintendent Ronald Walsh Jr., responded to Pieniazek’s calls over the radio intercom system with an affected “deep manly voice” while another officer allegedly told inmates about Pieniazek’s request to be recognized as nonbinary.
Ronald Walsh Jr., who also serves as the president of the powerful Council 82 state union, declined comment.
Lisa Walsh could not be reached for comment.
Salamone said that the county attorney’s office is investigating the alleged harassment and that “there’s been no deliberate or intentional discrimination on the part of the county or the sheriff ’s office.”
Pieniazek, who was on paid administrative leave for a time before returning to work for about three weeks in January, is out again with a pending workers’ compensation claim underway. Pieniazek is seeing four medical specialists, including two therapists and a psychiatrist, because of job-related stress.
“Desiree is looking for fair compensation that everything Schenectady County has put Desiree through, including the harassment,” Grogan said.
He said Pieniazek would like to return to the work.
Grogan said they had a teleconference with a state investigator and are now awaiting recommendations on whether there is probable cause for discrimination.
“If the county is willing to enter into a settlement agreement and compensate Desiree for the discrimination and harassment, we are willing to withdraw our complaint,” Grogan said.