Attorney offers clients advice on changing workplace issues

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By Sheila Pursglove
Legal News

Attorney Susan Koval has followed with interest the rumors suggesting former Olympic athlete Bruce Jenner, a 1976 gold medalist in the decathlon, is transitioning from a man to a woman.  “That, and Amazon Prime’s TV show Transparent, are certainly increasing awareness of transgender issues, specifically, how family and friends – and in Jenner’s case, the public – react and adjust to the transition,” she says.

But other recent events demonstrate the need for employers to become educated about legal obligations to transgender employees and to be proactive in monitoring how the workforce might react to a transitioning co-worker, notes Koval, a management-side employment litigation attorney and partner at Nemeth Law in Detroit who advises employers about workplace issues, including rights of LGBT employees.

“‘Gender’ is gradually being redefined by the courts so it no longer simply refers to a person’s sex but also to a person’s gender identity, self-image, appearance, behavior or expression,” she explains. “As a result, employers must ready the workforce for these changes, and – if not already doing so – should be considering action plans for educating and training employees about transgender issues, amend-
ing nondiscrimination and anti-harassment policies to include gender identity and transgender individuals, and establishing gender transition protocols.”

Koval finds it exciting to work in an area of the law that has evolved and is continuing to evolve.

“Whether by legislative enactment, popular vote or court decision, 37 states now recognize same-sex marriage,” she notes. “The United States Supreme Court has agreed to determine whether Michigan’s ban on same-sex marriage is constitutional. Employers must stay informed about these issues and how they impact employment policies and practices.”

Koval notes that the U.S. Department of Labor is revising the definition of spouse under the Family and Medical Leave Act (FMLA) to include employees in legal, same-sex marriages, regardless of where they live. Currently, FMLA is available to couples in same-sex marriages if they reside in a state that recognizes the marriage.

“As a result of the rule change – even though Michigan does not recognize same-sex marriages performed in other states – employers in Michigan must provide federal job-protected leave under the FMLA
to employees who need to care for a same-sex spouse with a serious health condition, as long as the marriage was legal in the state in which it was performed – this is known as the ‘place of celebration’ rule,” she explains. “Employers in Michigan must adapt to the rule changes or they will face federal lawsuits for wage and benefit losses and liquidated damages that can double the amount of actual damages.”

Named among Michigan Super Lawyers, Koval set her sights on the law in childhood, when she voraciously read Nancy Drew mysteries and enjoyed the TV show Perry Mason.

“Practicing law is problem-solving – each case is a mystery that needs to be solved,” she says.

After earning her undergrad degree in political science from West Liberty State College, she received her J.D. from West Virginia University College of Law, where she first had an interest in labor law – an interest that grew during a federal clerkship because of many proceedings involving disputes between labor organizations and employers.

“Employment litigation is fascinating,” she says. “It has the human element and complexities of daily life – courage, cowardice, emotion, ego, pride, sex, wrath, conflict, power, deceit, greed.”

It has also produced a challenging caseload including a case involving an employee who claimed he suffered from narcolepsy and alleged that Koval’s client did not accommodate his disability, wrongfully terminating his employment.

“By using his telephone records, voicemail messages... and medical records, we were able to demonstrate he was given a flexible schedule by his managers, but the reason he did not come to work and was fired was because he was not compliant with his doctor’s medical treatment for managing his narcolepsy and stayed up all night talking on the phone and partying,” Koval says. “The plaintiff voluntarily dismissed the lawsuit during the middle of his deposition.”

In another case for the books, an employee claimed she developed major depressive disorder due to being fired. According to her psychiatrist’s analysis of her functioning, the woman was barely able to get out of bed and take care of daily needs like bathing and finances.

“But during discovery, we learned that she was purchasing thousands of dollars in lingerie and jewelry from home shopping channels and taking cruises with her family,” Koval says. “She dropped her case when we learned she had become reemployed but was also receiving social security disability benefits because she had convinced the Social Security Administration she could not work because of her ‘major depressive disorder.’”

A native of Weirton, W.V., about 20 miles from Pittsburgh, Koval now makes her home in Northville and on weekends hits the links for some R & R.

“I absolutely love the beautiful golf courses around metro Detroit and other areas of Michigan,” she says. “I keep score, but I’ve never calculated my handicap. I play for fun and even when I’m having a bad day on the course I’m grateful I’m outside.”

Koval also enjoys traveling, with her greatest adventure thus far a trip to Peru that included jumping off a train and hiking the Inca Trail to Machu Picchu.

“But the most rewarding part... was when we stopped at schools in remote areas outside Cusco and handed out pens, pencils, paper and other supplies,” she says. “For geographic, cultural and other reasons, educating children, especially girls, in the rural areas of Peru is challenging. The children were thrilled to have things we take for granted here.”