These last few weeks we have focused on legal protections against sexual orientation and gender identity discrimination in the workplace under Title VII, (click here for review) under Affirmative Action laws and regulations governing federal contractors (click here for review), and under state and local laws (click here to review). What about the ADA/ADAAA? What about the FMLA? Do they provide any protections for the LGBT population in the workplace? They might. Let’s slow down and take a good look at both after the jump…
Doesn’t the ADA specifically exclude ‘transvestites’, ‘homosexuality’, ‘bisexuality’, ‘transsexualism’, and ‘gender identity disorders? Yes, under Sections 508 and 511; and the ADAAA in 2008 left those exclusions intact. Doesn’t that end any inquiry? Moreover, many are uncomfortable if not outright offended by the idea that someone should be considered “disabled” based on a sexual orientation or gender identity that does not conform with “traditional” sex roles or behavior. The ADA and the ADAAA are tricky, in large part because they attempt to deal with both legal and medical issues. I am not here to make a value judgment as to whether someone who is homosexual, bisexual or transgender is disabled or simply a part of our diverse population, or possibly a combination thereof. Bear with me here for a moment. I would not bother if I did not at least think there might be something that could have an impact in the Employment/HR Law arena.
While Sections 508 and 511(a) contain the exclusions cited above, Section 511(b)(1) contains one apparently overlooked exception, which reads as follows:
Under this chapter, the term “disability” shall not include:
(1) transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders [GID] not resulting from physical impairments, or other sexual behavior disorders. (emphasis added).
Let’s look at the bold print. Apparently the medical community has begun treating Gender Identity Disorder and/or Gender Dysphoria as a condition resulting from a physical impairment arising from genetics and/or hormonal imbalance in utero, rather than as a sexual behavioral disorder. A person can be born with variations from the norm. Some of those variations may be self-evident upon initial medical examination, such as certain intersex conditions; others, such as gender dysphoria, may not be self-evident from an initial medical examination, but may have a medical basis in fetal development and genetics. (See Duffy, Christine Michelle, Gender Identity and Expression in the Workplace – A Pragmatic Guide for Lawyers and Human Resource Professionals Association for Corporate Counsel, June 21, 2011. )
If gender dysphoria or gender identity disorder have medical origins, the ADA could be another vehicle for ensuring certain protections for transgender individuals. With the ADAAA having expanded the definition of when a person is “regarded as” disabled to include both actual and perceived impairments (regardless of whether the impairment would limit a major life activity) the employee need not be perceived as disabled. Being perceived as impaired could be enough to trigger ADA/ADAAA liability. Will there actually be ADA lawsuits on this basis? Will the EEOC jump on this wagon? If so, will employers settle? Will courts agree? Time will tell.
What about the FMLA? There may be some qualified protections here.
An employee with Gender Dysphoria undergoing hormonal treatments or sexual reassignment surgery may be entitled to FMLA leave. The DMS-5 includes Gender Dysphoria as a psychiatric impairment. This inclusion can therefore support an argument that it is a serious health condition under the FMLA. As with any situation the inquiry is very fact-sensitive. If, however an employer denies an employee’s request FMLA leave for treatments related to Gender Dysphoria, the employer could face an FMLA interference claim. Even if the employee does not win, the employer still has to spend time and money defending the claim, whereas providing the leave time may be less expensive, and less damaging to the other employees’ morale. Furthermore, if the employee decides to frame the issue as a Title VII violation, the EEOC has sent a clear message that it will take up the cause, even without express prohibitions within Title VII and even without consensus among the federal circuit courts of appeals. (Again, click here for review.) We’re not done though. Suppose your employee has the surgery, takes FMLA, uses up all his or her time, but still cannot return to work. Often such an employee is entitled to more time under the ADA, because, under the ADA additional time may be a reasonable accommodation. Finally, your state or city may have laws that provide specific protections to transgenders. I think you get the point!
How might the FMLA protect members of same-sex couples? That may depend on where the couple lives. Here is how it works: Assuming an employee has worked at least 1250 hours in the last 12 months for an employer with 50 or more employees within 75 miles s/he may be entitled to up to 12 weeks of leave: a) to care for his/her own serious medical condition; b) for birth of or placement for adoption with the employee; c) to care for a spouse, child or parent with a serious medical condition, or d) for need arising out of the employee’s spouse, child or parent as a military member who is on or called to active duty.
Is a same-sex partner a “spouse” under the FMLA? The Supreme Court in United States v Windsor 570 US ___ (2013) says that the definition of spouse cannot be confined to heterosexual unions –at least not in states that recognize same-sex marriages. The Obama Administration, after Windsor, called on all federal agencies to change their regulations accordingly. Therefore, if the employee lives in a state that recognizes same-sex marriages, s/he may qualify for FMLA leave. (Civil unions do not qualify.) Conversely, if the employee lives in a state that does not recognize same-sex marriages, s/he will not be eligible under FMLA for leave to care for his or her spouse/significant other. S/he may, however, be eligible for leave under state family medical leave laws, so again, check your state’s laws.
What about same-sex couples caring for children? The FMLA already extended protections to same-sex partners raising children prior to Windsor, regardless of whether their state recognizes their union.
OK, that’s it for now. Next week’s post will tie together everything we have looked at on this topic before we move on. In the meantime, enjoy your holidays!
If you or your company would like to learn more about co-employment and minimizing joint liability, click here to download my webinar on Joint Employment, which aired at 1 p.m EST Tuesday November 25, 2014.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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