A federal district court in Allentown, Pennsylvania ruled May 18, 2017, that the condition known as Gender Dysphoria could be a protected disability under the Americans with Disabilities Act (“ADA”). Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Penn. May 18, 2017). This is an interesting case for lawyers because it makes an important distinction that brings the plaintiff’s claim within the ADA, even though the Act has clear exclusions that we thought would apply. Also, there is a bit of constitutional law in the case that employment lawyers need to know. And, for employers, it continues down the path of hopeless confusion about what rules apply. Ok, it’s not quite that complicated, but we’re going to review the disability discrimination aspects, together with the gender discrimination pointers, so that you have an up to date understanding of where things stand in these nettlesome areas of employment law.
However, before I get “into the weeds” with the legal underpinnings of these claims, I do want to go on the record and advise employers, managers, supervisors, coworkers, human beings, and any robots or cybernetic forms who eventually displace some of us in the workplace, that treating people with dignity and based upon their ability to perform their jobs is always the correct course. Here, the plaintiff alleges that she continually reported to her superior that she was subject to degrading and discriminatory comments based on her disability. Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123, at *4 (E.D. Pa. May 18, 2017). That kind of misconduct should never be tolerated.
Gender Dysphoria as a protected disability. Ms. Blatt alleged that she suffered from Gender Dysphoria and that it qualified as a disability because it was a mental impairment that substantially limited several major life activities: including, but not limited to, interacting with others, reproducing, and social and occupational functioning. And that generally meets the ADA’s definition of disability. Cabela’s argued that because Gender Dysphoria is also known as Gender Identity Disorder, which is specifically excluded from the ADA as a disability, there was no claim under the ADA. In response, the plaintiff argued that if the ADA does in fact exclude Gender Dysphoria, that exclusion as applied in her situation violates her constitutional equal protection rights.
This was good lawyering from the plaintiff’s side, because it forced the court to employ the “constitutional-avoidance canon” which requires that when the validity of an act of the Congress is drawn into question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that the court will first ascertain whether an interpretation of the statute is fairly possible by which the question may be avoided. For our purposes, that required the court to determine whether there was an interpretation of Gender Dysphoria as a disability that the exclusion did not reach—whether the plaintiff’s condition could still be covered by the ADA despite what appears to be a clear exclusion of gender identity disorder.
The court reviewed the exclusion under the ADA, and its legislative history, and concluded that Congress intended that the listed conditions be excluded because they either were not disabling, or because although they could be disabling, they could be harmful to others or unlawful. Because Gender Dysphoria could be disabling but was not harmful to others or unlawful, the court concluded that it was required to interpret the ADA as covering the condition as a disability.
This is important because for employees undergoing gender reassignment, Gender Dysphoria is likely to be a diagnosis for some period of time throughout the process. In the case of a disability, employers must consider reasonable accommodations; you have to engage in the “good faith” dialogue on the matter as a basic obligation. Ms. Blatt requested a female nametag and uniform and the use of the female restroom as accommodations for her disability.
Gender stereotypes raise discrimination protections. Although this opinion does not discuss the gender discrimination parts of her lawsuit, it’s worth reviewing the intersection between gender identity and discrimination under the law as it now exists. By way of review, the federal law that covers sex (gender) discrimination in the private workplace is Title VII of the Civil Rights Act of 1964. It as of yet does not cover sexual orientation, or gender identity. But case law has held that discrimination “because of sex” (gender) captures conduct grounded in stereotypes about how the genders ought to behave or present themselves.
For example, not promoting a female through the ranks because she does not dress enough like a woman, does not wear make-up or the like, could violate Title VII, because it expresses a gender stereotype. Discriminating against LGBT+ employees can often come with just those sorts of stereotypes, particularly the use of ugly epithets and horseplay. In the context of a lawsuit, asking a court to parse misconduct that was based on sexual orientation as opposed to gender normative stereotypes is expensive and often futile. In fact, a federal court recently refused to dismiss a case alleging sex orientation discrimination saying that the law was “in a state of flux.” Philpott v. State of New York, 2017 WL 1750398 (SDNY May 2, 2017).
- Workplace harassment policies should cover… workplace harassment. Does it need to get more complicated than that? Well, yes, because some children don’t work and play well with others. Ensure that it covers both the prohibited conduct and the protected classes, and because the law is in a state of flux, ensure that it covers LGBT+ employees. It’s the right thing to do.
- Conduct workplace harassment training with managers, supervisors, and employees at least annually (and any robots or cybernetic forms). The practical reason is so that you continue to acculturate your workforce, especially new hires, that harassment, both hostile work environment, and the old-school quid-pro-quo, are not tolerated. The legal reason is that you might benefit from it as a defense. It’s also the right thing to do.
- Train managers and supervisors to listen closely for requests for workplace accommodations. Under the ADA, except for disabilities that are obvious, employers are not obligated to offer reasonable accommodations unless requested to do so. But once a request is made, it triggers the obligation to engage in a good faith dialogue to consider whether reasonable obligations are required. With the Americans with Disabilities Amendments Act, signed into law by President George W. Bush, Congress sent a message that employers needed to stop worrying so much about whether a condition was a disability and instead consider whether reasonable accommodations could be made.
- The employee is not entitled to the accommodation of her or his choice. Rather, an accommodation need only be reasonable and geared toward assisting the employee in performing the essential job functions. An accommodation need not relieve an employee of an essential job function. Sometimes that’s the sticking point: what’s essential. On that point, make sure your job descriptions are up to date and include the essential job functions.
- An employer need not make an accommodation if it would result in an “undue burden.” But as you read the regulations carefully, there isn’t much comfort here for employers. Meeting the “undue burden” burden (Ha!) is very burdensome, and I usually regret even bringing this up to clients because it raises false hopes in only the fewest of situations.
Honest mistakes, rogue employees, and plaintiffs looking for unearned paydays through the court systems cannot be avoided, but sticking to the basics and doing the right thing will result in good outcomes most of the time.
It’s the law, y’all.