State justifies guard’s hearing
Fight continues in desire to be recognized as nonbinary
The state Division of Human Rights has determined there is probable cause to justify holding a hearing in Schenectady County jail guard Desiree Pieniazek’s fight to be recognized by the county and co-workers as nonbinary, according to Pieniazek’s attorney.
The ruling paves the way for the hearing, which could happen toward the end of the year, according to Pieniazek’s husband, Cory Akerson, a former county corrections officer. He also confirmed that a state attorney would be handling the case for free going forward.
Until now, Pieniazek had been represented by lawyer Adam Grogan with the Tully Rinckey law firm.
Akerson said Wednesday that the couple has known about the ruling for about two months but only formally received the paperwork explaining it a few days ago because of the backlog of cases.
“This whole entire time Desiree didn’t want to sue, that’s never been the issue, which now is unfortunately the way it has to go, but Desiree just wanted them to create policies and procedures,” Akerson said, adding the county is “failing to recognize any individual other than male or female and it’s what they assume they are, and it’s not what that individual wants to be recognized as.”
The state Human Rights Division website states in general terms that if there is a determination of probable cause, “there is no appeal to court” and “the case then proceeds to public hearing before an Administrative Law Judge.” It
goes on to say that the respondent — in this case Schenectady County — can ask within 60 days that the commissioner of human rights review the determination.
Frank Salamone, the lawyer handling the case for the county, declined comment Wednesday.
The matter ended up in a legal fight after Pieniazek, a veteran corrections officer, filed complaints against the county alleging discrimination and harassment by co-workers who learned of the request to be recognized as nonbinary.
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 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 earlier this year. “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.”
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, 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.
Grogan had earlier in the year said “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.”
In March, Salamone said 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” covers people who are nonbinary.
He said a section of civil rights law offers employees protections against discrimination based on gender with one exception being the socalled bona fide occupational qualifications, the rules that regulate gender-specific 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 at the time, 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.
Pieniazek, who has 12 years on the job, recalled first contacting the county’s human resources department in 2019 about changing gender identity to nonbinary. The call was not returned.
Harassment has been a factor at the jail, Pieniazek said earlier this year. Salamone said 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 under way. Pieniazek is seeing four doctors, including two therapists and a psychiatrist, because of jobrelated stress.
On Wednesday, Akerson said Pieniazek would like to one day return to work.