[transgendernews] [News] [ME,USA] MHRC Report Alleges Transgender Discrimination By Camp Kieve
Meryl Sizemore
Lincoln County News - Damariscotta, ME, USA
MHRC Report Alleges Transgender Discrimination By Camp Kieve
Story date: 02/27/2008
By Sherwood Olin
An investigator for the Maine Human Rights Commission has determined
that Camp Kieve employees in Nobleboro discriminated against a
transgender Pennsylvania man.
The investigator's report will be part of a hearing before the entire
commission Monday afternoon in Augusta. The commission has not made a
finding on the report's contents.
Compiled by Paul D. Pierce and filed with the commission Feb. 7, the
eight-page document supports the basis of a complaint filed by
Jeremiah Nazarkewycz on March 29, 2007.
Nazarkewycz alleged that Kieve-Wavus Education Inc. refused to rehire
him for the spring 2007 session after Nazarkewycz made a public
appearance at Cony High School in Augusta last January, discussing his
transgender status.
Nazarkewycz is identified in the report as a young college student
from Slippery Rock, Penn. A Jan. 30, 2007 Kennebec Journal article
further identifies Nazarkewycz as a 2006 Cony High School graduate who
was born Jen Ochmanski.
Throughout his report, investigator Pierce refers to Nazarkewycz in
the masculine tense, quoting in part written comments submitted by
Licensed Clinical Professional Counselor Krista Chase:
"Jeremiah has participated regularly in counseling with me as well as
other providers," Chase said. "He has worked on intrapersonal and
interpersonal issues resulting from his identification as a male.
Since 2005 Jeremiah has identified as male socially and medically.
Thus far he has followed all the steps in making this transition as
recommended by health providers."
According to the report, Nazarkewycz worked as Primary Resident
Overseer (PRO) for Kieve's Leadership Decisions Institute from Aug. 6
to Dec. 6, 2006. After Nazarkewycz was hired but before he started
work, he informed the Leadership Institute Director, variously
identified in the report both as "Mr. LD" and "Mr. DL", about his
transgender status via email.
According to the report, LD stated that the job offer was not
withdrawn at that time because he believed doing so would have been
discriminatory. LD stated he equated gender identity with sexual
orientation.
As a PRO, Nazarkewycz's responsibilities included overseeing life in a
cabin with middle school boys, four nights a week. Other duties
included organizing activities and orchestrating team-building
exercises.
During the course of the fall of 2006, Nazarkewycz's job evaluations
were on par with the other counselors, the report states.
According to the report, LD described Nazarkewycz as young, having
some rough edges, but working out satisfactorily. When Nazarkewycz
asked if he could come back and work the spring of 2007, LD reported,
"At the time I had no reservations about his job performance and it is
advantageous to have returning PRO's so I told him he could come
back."
Nazarkewycz subsequently appeared at Cony High School Jan. 29, 2007 as
part of that school's Diversity Day program. His appearance was
reported the next day in the Kennebec Journal. Nazarkewycz's
employment status is not addressed in the KJ article.
After the article appeared, Kieve's Business Manager "Mr. BM" realized
for the first time that Nazarkewycz was physically a female.
According to the report, after the article appeared "Mr. BM& carefully
evaluated the qualifications for the PRO position&. Mr. BM concluded
that the essential functions of a PRO require a PRO to be of the same
sex as the children he or she is supervising."
That culminated in a meeting in a coffee shop Feb. 13, 2007 between
Nazarkewycz, BM and LD. The two Kieve officials asked Nazarkewycz to
consider privacy issues and the legitimate expectations of parents and
children regarding residential programs.
When Nazarkewycz was unable to think of any potential accommodation
that would allow him to perform the PRO duties, BM and LD told him
that Kieve-Wavus would not be able to rehire him for the spring of
2007.
The report notes that Kieve claims Nazarkewycz was not rehired because
the business manager and Leadership School Director "concluded that
the essential job functions require a Primary Resident Overseer to be
of the same sex as the children he or she is supervising& (they)
concluded Nazarkewycz did not have the qualifications to work as a PRO
in the boys' cabins& (and) that Mr. Nazarkewycz gender identity would
disqualify him from performing in the girls' cabins as well..."
The report declares: "This written declaration unambiguously states
the employer's intentional, purposeful act of discrimination because
of the complainant's gender identity."
The report argued against Kieve's claim that Nazarkewycz was not
re-hired due to a Bona Fide Occupational Quality (BOFQ); in this case,
that a PRO must be the same sex as the children in their charge.
The report relates that the statute for BFOQ must be interpreted very
narrowly with the onus on the employer to prove by a "preponderance of
evidence" that the nature of the business operation requires the
discriminatory practice and that there is a factual basis to believe
that all or nearly all of the excluded persons would be unable to do
the job.
In his summation, the investigator determined that Kieve violated the
BFOQ statute by refusing to hire Nazarkewycz "based on assumptions
about comparative employment characteristics based on sexual
orientation" and / or "because of the preferences or prejudices of
others".
"It cannot be argued that that the essence of the Kieve Wavus business
'requires discriminatory practice'. Mr. Nazarkewycz did in fact
perform his PRO job in such a manner that he was a very popular
supervisor."
Based on the totality of the findings: "There are reasonable grounds
to believe unlawful discrimination because of gender identity has
occurred against Mr. Jeremiah Nazarkewycz by Kieve Wavus Inc."
The Maine Human Rights Commission will hear the case during the
afternoon session of the commission's March 3 meeting. The board meets
in the Embassy Room of the Senator Conference Center, Augusta Best
Western, 284 Western Ave. The afternoon session begins at 1 p.m.
Asked for comment, Camp Kieve director Henry Kennedy said Kieve
sympathized with Nazarkewycz but he strongly believes the
investigators' report does not consider all the facts.
In a brief interview with The Lincoln County News this week, Kennedy
said the Kieve has a legal and moral obligation to protect the
children entrusted to its care.
"This case is not about transgenderism," Kennedy said. "It is about a
biological woman living in a boys' cabin as a cabin counselor. It is
about the privacy of preadolescent and adolescent children between 10
and 13 years old, a time in a young person's life when modesty and
concern with privacy are paramount. Kieve has a legal and moral duty
to protect those rights."
Kennedy added that during the time of Nazarkewycz's employment, he had
not had gender reassignment surgery and therefore was still a
biological female. By policy, like other residential camps and
schools, Kieve requires that female counselors live with the girls and
male counselors live with the boys, Kennedy said.
"Kieve and Wavus do not allow men to live with and supervise girls as
they dress, and undress, toilet and shower, the most intimate
activities of daily living," Kennedy said. "By the same token we do
not allow women to live with and supervise boys in the same
circumstances."
According to Kennedy, the investigator completely ignored the rights
of the children other than to point out that since the children never
knew Nazarkewycz's gender, their privacy was not violated.
"We strongly disagree," Kennedy said. "Just because someone doesn't
know that someone else is looking at her in the shower through a
peephole does not mean those rights were not violated& Kieve Wavus
will not let the privacy of the children in its care to be violated
and it won't breach the trust of the parents who allow us to care for
and teach them."
As quoted in the report, Nazarkewycz states his opinion that it was
not his transgender status that bothered Kieve Wavus officials so much
as the public knowledge that a transgender man was working at a
residential camp, supervising boys.
"Kieve Wavus' inability to state their lack of comfort with my
transgender status is at hand," Nazarkewycz said.
Nazarkewycz states that he has been formally diagnosed with Gender
Identity Disorder. Having met all requirements, he began hormone
therapy in April 2006. Since beginning hormone treatment, he states
that he never has been recognized as female by anyone who had not
known him before.
Nazarkewycz states that he had a separate cabin to change and shower
in as the cabin was only used when large groups came through.
Nazarkewycz states that he always showered with his personal
belongings with him "insuring that no child would walk in to obtain a
forgotten item for the day."
Nazarkewycz points out that he was under no obligation to inform
present and future employers of his gender identity status but he did
so in this case as a courtesy. He alleges that his employment only
became an issue after the Jan. 30 Kennebec Journal article appeared.
"A majority of the Kieve Wavus decisions were based on the article and
how it became public knowledge," Nazarkewycz states. "During my
meeting with Mr. BM and DL, we discussed how parents in the Freeport
area (given their affluent lifestyle, money and all) would take to
such information. During the meeting what I perceived was their fear,
as the article was public knowledge, and how it would affect the
business."
In an email to The Lincoln County News this week, Nazarkewycz expanded
on this point.
"I informed Kieve of my status before ever stepping foot on their
property, with the knowledge that they had probably never dealt with
such an issue before, giving them the chance to discuss the issue and
decide," he said. "Yes, legally I am female, my birth certificate and
state ID says so, but in every way I identify as male. I do not
identify with males. There is a difference as many females can
identify with males and still identify themselves as a female. My
intent on filing the complaint was a hard decision. I respect
everything they do for middle school students throughout New England,
being a graduate of the LDI program (now The Leadership School).
However I felt what they had done, waiting until a week before I would
return for the spring session, and based on the Kennebec Journal
article, it was illegal justification of their termination of my
employment."
Asked why he wanted to work at Kieve in the first place, and if he
wanted to work there again if his case is successful, Nazarkewycz
responded, "I wanted to work at Kieve because I participated in the
program as a middle school student and thoroughly enjoyed it. Would I
want my job back? I would have to think long and hard about that one,
because my employment termination was against everything they taught
those kids. Everyone deserves to be treated with kindness and
respect."
He closed with a quote from Kieve's own literature: "What would life
be like if everyone was treated with kindness and respect, if hugs
were unconditional, and we all walked our talk?" (Slavin Pg. 1
Leadership Manual).
According to Nazarkewycz, it was his impression that the major issue
for Kieve Wavus was not his gender identity, or the children he was
supervising, but more the image it could present of the business and
the school.
"As a minority in this country and the world really, I understand that
ignorance come and will be dealt to me," Nazarkewycz said. "Most
people don't choose ignorance, it is just the lack of knowledge people
have."
http://www.mainelincolncountynews.com/index.cfm?ID=30643
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