There has been a lot of buzz on whether sex discrimination under Title VII includes gender identity and sexual orientation discrimination. Last week, however we were thrown a curveball. A federal judge ruled that a transgender employee may in fact be protected from discrimination — under the Americans with Disabilities Act. Wait. What? Gender identity is a disability? Well, no. Even the ADA says it’s not. Wait (again). If even the ADA says it’s not, then how can a transgender employee be protected from discrimination under the ADA? That’s such a great question, we’re going to make it this week’s topic, so read on…
(image from indianexpress.com)
So what happened? The short answer is Blatt v Cabela’s Retail Inc, 5:14-cv-04822, in the US District Court, ED PA happened. But that’s not a helpful answer. So here are the facts: Cabela’s, a sporting goods store, hired Kate Lynn Blatt a transgender merchandise stocker, in 2006. Prior to her employment at Cabela’s Blatt had lived a double life. At work, she used her birth name and presented as a man. At home, Blatt lived as a woman. Upon her employment at Cabela’s Blatt chose to no longer live that double life. She disclosed to Cabela’s that she had gender identity dysphoria, that although it is a serious condition, it is treatable and does not prevent her from doing her job, as long as she can live her life as a woman. She requested accommodations that included a woman’s uniform, a name tag with her female name (for which she secured a legal name change) and to be allowed to use the women’s bathroom. Cabela’s refused to honor any of these requests. Regarding the bathroom, she was told to either use the gender-neutral family bathroom or to use the women’s bathroom at the Dunkin’ Donuts across the street. Approximately 6 months after her start date, Cabela’s accused Ms. Blatt of getting into an altercation with a co-worker (an allegation she denies) and fired her.
Ms. Blatt sued Cabela’s, claiming discrimination. Most of us would have expected her to sue under Title VII. Blatt sued under the Americans with Disabilities Act, and secondarily the Equal Protection Clause of the 14th Amendment. Here’s the problem: the ADA excludes the following specific conditions as covered disabilities entitled to protection against discrimination: “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairment, other sexual disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance abuse use disorders resulting from current illegal use of drugs” (emphasis added) and homosexuality and bisexuality (See 42 USC Sec. 12211(b), 29 CFR Sec 1630.3(e). Transgender status and sexual orientation are not an impairment. Most people will agree on that, even without a specific exclusion of them under the ADA. So how then can Ms. Blatt be protected from discrimination under the ADA based on her transgender status? Let’s see what the court said.
While being a transgender man or woman is not protected under the ADA, the judge said that Gender Dysphoria is. Requests for accommodations of such a disorder, if they are reasonable would fall under the ADA. Specifically, the judge reasoned:
“[I]t is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have — such as [a person’s] gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.”
Now let’s break that down. The judge seems to be saying that it’s possible to exclude the specific condition of identifying with a different gender from ADA coverage, without excluding the dysphoria arising out of the gender identity disorder, which substantially limits one or more major life activities. Yes, there is some hair-splitting here, but it may set a precedent in other locations or exert more pressure to provide the LGBT population explicit protection from discrimination. Why did or would the judge engage in a bit of mental gymnastics? Here is some more of his reasoning: The ADA is intended to be “broadly construed to effectuate its purposes”. He went even further, when he said, ““any exceptions to the statute … should be read narrowly in order to permit the statute to achieve a broad reach.”
One more point: The Equal Protection argument essentially attacked the actual exclusions under the ADA. Denying this specific population protection against discrimination under the ADA denies them Equal Protection under the law violates the 14th Amendment of the Constitution. Most judges, if they can, will avoid deciding a constitutional question. This judge’s ruling allowed him to do exactly that.
So what happens now? Technically, this ruling is only binding on the Eastern District of Pennsylvania–for now. We can assume there is a decent chance it will be appealed. If it were to be appealed and make it up to the Supreme Court, we can’t really say for sure that this ruling will stand. Then again, Congress did amend the ADA in 2008, which took effect in 2009). The exclusions we are discussing made it into the statute because some of the more conservative members of Congress would not have voted to pass it otherwise.) Then, yet again, the growing demand for equal rights for the LGBT population may put more pressure on Congress to amend Title VII. Finally, other courts in other locations may use this ruling as a precedent. Stay tuned as it seems there will be more developments in this area over time.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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