Bloomberg Law for HR Professionals is a complete, one-stop resource, continuously updated, providing HR professionals with fast answers to a wide range of domestic and international human resources...
Aug. 3 — Discrimination charges based on transgender status have been filed under Title VII, but an EEOC district director said he is seeing “an emerging issue”—those claimants are starting to assert violations of the Americans with Disabilities Act, too.
“You can expect to see this issue play out under both statutes,” Reuben Daniels told participants Aug. 3 at the National Industry Liaison Group's annual conference in Charlotte, N.C. Daniels is district director of the Equal Employment Opportunity Commission's Charlotte District Office.
“Right now, the EEOC has not taken a position on this issue,” Daniels said.
However, the Justice Department has argued in federal courts that gender dysphoria is a disability under the ADA and not excluded by a statutory exemption for gender identity disorder claims not resulting from a physical impairment.
“The EEOC is not there yet, so we have not issued any decision or guidance on discrimination based on transgender status or gender identity under the ADA. But, as a best practice, we do accept those claims to preserve the rights of the charging party” regarding the timeliness of the charge, he said.
The agency doesn’t advise charging parties on discrimination based on gender identity and transgender status under the ADA, he said. The agency will focus on the portion of the charge related to Title VII of the 1964 Civil Rights Act.
Daniels generally sees the ADA allegations in discrimination charges in which private counsel have informed the charging party or the EEOC that they want to file under the ADA, as well as Title VII. “If that’s the case, then we will honor that,” he said.
Furthermore, “we are starting to see litigation in which plaintiffs are pleading the ADA coverage as part of their gender identity, transgender status or LGBT protection,” he said.
“There is a debate going on in the lesbian, bisexual, gay and transgender community as to whether gender identity or transgender status should be treated as an ADA-covered issue. You don’t want your identity to be tagged as being a disability. That is one of the arguments that I have heard,” Daniels said.
However, some have said that “this is an issue in which I have no control, and it’s no different than depression or any kind of medical condition that may be psychological or psychiatric in nature,” he added.
Some medical experts have said that “gender is not binary, but part of a continuum, and people can identify at various places on the scale,” he said. “Maybe the law is struggling to catch up with the medical community.”
To contact the reporter on this story: Lydell C. Bridgeford in Charlotte, N.C., at email@example.com
To contact the editor responsible for this story: Heather Bodell at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)