Disability Bias Ruling for Transgender Worker: Boon or Blip?

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By Patrick Dorrian

Transgender workers may have protections under federal disability law that go beyond and supplement the rights that seem to be emerging under federal sex discrimination law.

That’s the upshot of a federal judge’s novel recognition that Cabela’s Retail Inc. may have violated a male-to-female transgender employee’s rights under the Americans with Disabilities Act when it repeatedly denied her choice of workplace name tag and restroom, LGBT-rights advocates told Bloomberg BNA.

A pair of management lawyers, however, cautioned that it’s still early in the case. Kate Lynn Blatt ultimately will have to present evidence proving her entitlement to ADA coverage and damages, they said. And, they added, it’s unclear whether other courts will embrace the U.S. District Court for the Eastern District of Pennsylvania’s analysis or its holding that Blatt’s “gender dysphoria” isn’t excluded from the protections of the ADA.

The American Psychiatric Association defines gender dysphoria as a conflict between a person’s physical or assigned gender and the gender with which he or she identifies. The group added gender dysphoria as its own separate category, replacing gender identity disorders, to its Diagnostic and Statistical Manual of Mental Disorders in 2013.

Is Community’s Perception of ADA Changing?

Some in the LGBT community have historically been reluctant to champion use of the ADA to pursue transgender workplace rights because not all gender-diverse or gender-affirmed workers—alternative references to transgender status preferred by some in the community—view their conditions as disabling. There also is concern with the stigma that can come with the “disabled” label.

“We faced that question often” from the time the lawsuit was filed, one of Blatt’s attorneys said.

“We had to make clear that we weren’t saying that all transgender” workers are necessarily disabled, Neelima Vanguri told Bloomberg BNA. She’s with Sidney L. Gold & Associates P.C. in Philadelphia.

The historical “discomfort” is based in part on a misunderstanding of how the ADA works, Jennifer L. Levi said. She is the director of GLBTQ Legal Advocates & Defenders (GLAD)’s Transgender Rights Project, which together with other rights advocates filed an amicus brief supporting Blatt.

The misunderstanding is perhaps a byproduct of the narrow reading too many courts gave to the law prior to its amendment in 2008, Kevin Barry told Bloomberg BNA. He is a professor with the Quinnipiac University School of Law’s Civil Justice Clinic and co-authored GLAD's amicus brief with Levi.

But the perception is beginning to change—and is likely to change even more—as education on the law’s potential benefits for transgender workers grows, Levi said.

Cabela’s attorney didn’t respond to Bloomberg BNA’s request for comment.

Sharp Spike in Claims Not Forecast

Nevertheless, a sharp rise in claims isn’t expected by folks on either side of the aisle.

For one thing, it’s not clear that “at the end of the day” there will be many cases with facts that fit within the court’s holding, management-side attorney Frank C. Morris Jr. of Epstein Becker & Green said. He heads the firm’s employment, labor and workforce management practice in Washington and co-chairs its ADA and public accommodations group.

Still, the decision “opened the door” to similar allegations by other workers, management-side attorney Stephen P. Sonnenberg said.

And it’s consistent with current medical thinking about the mental health and related struggles of transgender people, he said. Sonnenberg heads Paul Hastings’ New York employment law department and formerly practiced psychotherapy as a licensed clinical social worker.

Accordingly, employers should be aware that transgender workers may have—or soon may have—protections under the ADA, potentially including the right to disability-related job accommodations.

Transgender workers and their advocates should stand ready to pursue those rights when they believe doing so is necessary to achieve workplace fairness, the LGBT advocates said.

First-of-Its-Kind Ruling

The May 18 ruling by Judge Joseph F. Leeson Jr. “is really a remarkable decision,” Barry said. The judge, he said, “dug into both the text and the legislative history of the ADA” in finding that gender dysphoria doesn’t fall under the law’s exclusion of gender identity disorders (GIDs) that aren’t caused by a physical impairment.

Levi said the decision is “surely the first of its kind.”

A key part of the court’s rationale was that a person with gender dysphoria may have related conditions that can limit basic human functions—or in the language of the ADA, impairments that substantially limit a major life activity. Blatt, for instance, alleges that she’s substantially limited in the major life activity of social or occupational functioning, among other things.

The court said it’s possible to read the ADA’s GID exclusion as not encompassing “a condition like Blatt’s gender dysphoria, which goes beyond” identifying with a gender different from one’s birth sex. Gender dysphoria, it said, may also be characterized by clinically significant stress and other potentially disabling impairments.

That’s consistent with the American Psychiatric Association’s positions that the gender conflict that marks gender dysphoria “affects people in different ways” and that people with the condition “may often experience significant distress and/or problems functioning associated with” their gender conflict.

Leeson found that the GID exclusion, 42 U.S.C. § 12211, only excepts from ADA coverage “two distinct categories.” They are disabling conditions, such as pedophilia, that are associated with illegal or harmful conduct, and nondisabling conditions involving sexual identity or orientation.

Blatt’s condition seemingly doesn’t fit into either of those categories because she alleges it’s disabling and it isn’t associated with illegal or harmful conduct, the court found.

The ruling “also reflects the transgender community’s experience with being trans,” Levi said. Some transgender folks don’t have any of the secondary conditions attributable to gender dysphoria, she said.

There have been similar rulings under state law and in some older cases decided under the federal Rehabilitation Act, she said. But there has never previously been a ruling on whether ADA coverage for gender dysphoria is barred under the law’s GID exclusion.

Prior to those state court decisions and Leeson’s ruling, the mental health and other secondary conditions frequently associated with gender dysphoria often “got blended in” with a transgender person’s gender identity, Christine M. Duffy said. She’s a senior staff attorney in the New Jersey office of the Pro Bono Partnership.

Time ‘to Get on Board’?

The case should be a further signal to corporate America that “a tipping point has come” in the march toward LGBT workplace rights, Duffy said.

“I haven’t seen” any law firm newsletters that aren’t advising employers “to get on board,” she said. Duffy also is editor-in-chief of the Bloomberg BNA treatise “ Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide .”

Social mores have changed, she said. An employer’s refusal to accept gender-diverse and gender-affirmed workers “as normal,” can lead to bad publicity, Duffy cautioned. It’s “not a fight you want to fight,” she said.

Sonnenberg likewise counseled caution. When interacting with an employee with a known diagnosis of gender dysphoria, employers would be well-advised “to be in tune with” whether the employee is also indicating the presence of a secondary condition—such as mental distress stemming from gender identity-related mistreatment in the workplace—that may trigger ADA coverage, he said.

But Leeson’s ruling doesn’t change the basic premises for establishing an ADA claim, he said. A worker with gender dysphoria, like other ADA plaintiffs, still must satisfy all of the elements for proving a claim, Sonnenberg said.

Epstein Becker’s Morris pointed to another potential limitation on the reach of the court’s analysis. Blatt’s case probably “could have been pleaded effectively without getting into gender dysphoria,” he said.

It likely would have been enough at this early stage for Blatt to simply have alleged that she has mental health concerns requiring job accommodations that weren’t provided, he said. It typically wouldn’t be part of the ADA analysis at the pleading stage to get into what caused the mental health condition, Morris said.

Benefits of ADA Protections

Duffy and Levi both noted a strong move toward recognition of sex bias protections for transgender workers under federal law. Still, ADA coverage—and pleading ADA claims—brings benefits for workers with gender dysphoria that Title VII of the 1964 Civil Rights Act may not be able to deliver, even if courts ultimately agree that Title VII covers gender identity discrimination, they say.

“When viewed through the prism of disability, judges have less difficulty seeing that the cure” for gender dysphoria is allowing gender-diverse and gender-affirmed people to express themselves through which bathroom they use, how they dress, and how they otherwise present themselves to the public and at work, Duffy said. Judges don’t want to get into employer dress codes and similar minutiae, she said.

It also helps judges “understand the underlying medical condition” and “that trans people are normal,” Duffy added.

Moreover, pursuing ADA claims for transgender workers with gender dysphoria brings the statute’s reasonable accommodation analysis into play, Levi said. It thus may be a better way than suing under Title VII for these workers to win legal protections for their workplace dress, presentation, and restroom choices, she said.

But while transgender workers may be gaining rights under both Title VII and the ADA and may be able to sue under both statutes, they may not be to recover separate money damages under each law, Morris said.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at COpfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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