Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
A recent federal lawsuit could change the way employers need to structure their employment policies and procedures as they impact transgender employers under the Americans with Disabilities Act (ADA).
For many years, transgender individuals have relied primarily on state anti-discrimination laws to bring claims of employment discrimination against employers. After the landmark 1989 Supreme Court case Price Waterhouse v. Hopkins made sex-stereotyping a viable claim for sex discrimination under Title VII, courts in a few Circuits ' notably the U.S. Courts of Appeal for the First, Sixth, Ninth and Eleventh Circuits ' have held that certain forms of discrimination against a person for being transgender is prohibited by Title VII under a Price Waterhouse theory, or equivalent federal laws. For purposes of this article, I will use the word “transgender” as an umbrella term to discuss individuals whose gender identity and/or expression is different than what society might expect based on their sex assigned at birth.
The Equal Employment Opportunity Commission (EEOC) took the position that Title VII prohibits discrimination against transgender individuals in its 2012 Macy v. Holder finding. The EEOC also promulgates guidance and regulations, which reference that it considers transgender as a protected status under Title VII. A new lawsuit posits an additional theory of discrimination protection for transgender employees, and due to a Statement of Interest filed by the government in that case, regardless of the outcome, the scope of federal protection for transgender individuals is poised to shift, dramatically.
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
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.
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
What Law Firms Need to Know Before Trusting AI Systems with Confidential Information In a profession where confidentiality is paramount, failing to address AI security concerns could have disastrous consequences. It is vital that law firms and those in related industries ask the right questions about AI security to protect their clients and their reputation.
During the COVID-19 pandemic, some tenants were able to negotiate termination agreements with their landlords. But even though a landlord may agree to terminate a lease to regain control of a defaulting tenant's space without costly and lengthy litigation, typically a defaulting tenant that otherwise has no contractual right to terminate its lease will be in a much weaker bargaining position with respect to the conditions for termination.
The International Trade Commission is empowered to block the importation into the United States of products that infringe U.S. intellectual property rights, In the past, the ITC generally instituted investigations without questioning the importation allegations in the complaint, however in several recent cases, the ITC declined to institute an investigation as to certain proposed respondents due to inadequate pleading of importation.
As the relationship between in-house and outside counsel continues to evolve, lawyers must continue to foster a client-first mindset, offer business-focused solutions, and embrace technology that helps deliver work faster and more efficiently.
Practical strategies to explore doing business with friends and social contacts in a way that respects relationships and maximizes opportunities.