Evolving Science May Provide Coverage for Transgender Employees Under the ADA

Blatt v. Cabela's Retail

A lawsuit recently brought by a transgender employee is raising the question of whether another federal law, the Americans with Disabilities Act (ADA), protects transgender individuals. In a pending lawsuit in the Eastern District of Pennsylvania federal district court, Blatt v. Cabela's Retail, Inc., the plaintiff, alleging claims under Title VII and the ADA, states that she was hired as a stocker by Cabela's and was terminated as a result of transgender discrimination. Blatt had been diagnosed with gender dysphoria ' a condition involving a misalignment between one's sex and gender identity ' in 2005 and had subsequently transitioned from male to female.

In the fall of 2006 when Blatt was hired by Cabela's, she attended orientation dressed as a female and used the women's restroom without incident. Her complaint alleges that once she began working, she was forced to wear a nametag that read “James” despite a legal name change. Moreover, she claims to have been prohibited from using the women's restroom and forced to use a single-stall family restroom a greater distance from her work area. Additionally, she alleges other harassment from managers and coworkers occurred before her termination in March 2007.

Blatt's claims under the ADA are noteworthy because they challenge the express exclusion of gender dysphoria in the ADA as unconstitutional under the Equal Protection Clause. Specifically, the ADA states that “homosexuality and bisexuality are not impairments and as such are not disabilities” under the Act. In addition, the ADA states, “the term 'disability' shall not include ' gender identity disorders not resulting from physical impairments ' .” 42 U.S.C. ' 12211. Blatt's lawsuit alleges that the express exclusion denies her equal protection of the law.

Cabela's moved to dismiss Blatt's claims under the ADA, and the Department of Justice (DOJ), citing its interest in upholding the constitutionality of the ADA, filed a Statement of Interest in November 2015. That Statement of Interest asserts that the “growing body of scientific evidence” regarding gender dysphoria suggests that it may be the result of hormonal or genetic causes, and as such, some instances of gender dysphoria “result from physical impairments.” Therefore, argues the DOJ, the court should avoid the constitutional question by interpreting the statutes to mean that gender dysphoria is not, as a matter of law, excluded from the ADA.

Regardless of how the court rules on the motion, it is likely that the case will be appealed to the U.S. Court of Appeals for the Third Circuit, affecting employers in Pennsylvania, Delaware and New Jersey. Furthermore, given that the DOJ has taken the position that at least some forms of gender dysphoria may be covered by the ADA, it is likely that the EEOC may begin pursuing such claims on a national basis.

This case, therefore, means that employers need to evaluate their workplaces carefully to avoid scrutiny from the EEOC or private litigants over their employment policies and practices as they impact transgender employees under the ADA. While many employers have already analyzed whether their policies conform to the requirements of state anti-discrimination laws and Title VII, the ADA brings an entirely different set of issues into play.

What Employers Should Consider

The ADA covers individuals who are “regarded as having a disability,” which means that individuals who simply appear gender non-conforming may be able to bring a claim under the ADA.

When the EEOC is investigating a matter under any statute, it has broad discovery powers to investigate other potential violations of that same statute. A transgender individual who files an EEOC charge of discrimination under Title VII and the ADA, therefore, could expose the employer to a much larger investigation than a charge filed under Title VII alone.

The ADA requires an interactive process. As a result, blanket policies that impact employees, such as gendered dress codes or bathroom usage rules, could be interpreted as a violation of the ADA unless those policies are clear that an employee can seek a reasonable accommodation of the applicability of those policies.

Under a current reading of the ADA, employers are under no obligation to provide leave for gender reassignment surgery or for other procedures or appointments connected to gender dysphoria. Inclusion of gender dysphoria under the ADA would make employers responsible to consider a range of accommodations up to and including leaves of absence under the undue hardship lens.

While the DOJ's stance appears to leave open the possibility that, for some, gender dysphoria is not genetic, employers would be advised not to try to determine if an employee's diagnosis was the result of genetic causes because of potential liability under the Genetic Information Nondiscrimination Act (GINA). Under GINA, an employer may not request an employee's or applicant's genetic information, with a few limited and statutorily defined exceptions that do not include assessing whether an employee needs a reasonable accommodation. As a result, employers would be advised to assume that all transgender employees with a diagnosis of gender dysphoria are entitled to a reasonable accommodation (although under the ADA, an employer can still ask for medical verification from an employee's physician that any reasonable accommodation request is necessary).

An employer may face liability for providing health coverage that excludes genital reassignment surgery as a covered condition. Indeed, current lawsuits ' such as one filed in state court in Minnesota in late 2015, Outfront Minnesota v. Johnson Piper ' are challenging the exclusion of gender reassignment surgery under state medical assistance programs.

Current protections for transgender employees under federal law, such as the sex-stereotyping theory advanced in Price Waterhouse , essentially require evidence that an employee did not conform to gender stereotypes, such as wearing certain clothing, which likely coincides with the process of transitioning. A diagnosis of gender dysphoria, however, could come years before a decision to transition, and an employee may choose to never transition yet still seek accommodations under the law. As a result, employers may need to think about accommodating gender dysphoria at a point when an employee does not present himself or herself as the opposite gender.

Conclusion

This article by no means attempts to address all the issues that employers will need to evaluate should the DOJ's position become law. Employers outside of the Third Circuit may decide to wait to consider these issues until a court in their jurisdiction rules on the issue. However, since the DOJ has taken this position, it is likely the EEOC will follow suit. Given the EEOC's national presence and broad discovery powers, employers would be well advised to evaluate their policies and practices in anticipation of transgendered employees being protected under the ADA.

Jen Cornell is an attorney with Nilan Johnson Lewis in Minneapolis. She can be reached at [email protected] or 612-305-7717.