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In May 2017, a federal district court judge from the Eastern District of Pennsylvania ruled that the Americans with Disabilities Act (“ADA”) may cover “gender dysphoria,” as well as other conditions related to “gender identity disorder.” Though seen as a departure from previously established law, this ruling could open the door to expanding employment protections to some transgender individuals under the ADA.

What is “Gender Dysphoria”

By now, the term “transgender” is a common term in our national vocabulary.  “Transgender” is an umbrella term for people whose gender identity and/or gender expression is different from cultural expectations placed on them due to their biologically-assigned birth gender. An issue more and more transgender individuals are seeking treatment for is known as “gender dysphoria.” The Human Rights Campaign defines “gender dysphoria” as “clinically significant distress caused when a person’s biologically-assigned birth gender is not the same, or does not match, the gender with which that person “identifies.”

Historical Treatment of LGBTQ Issues under the ADA

Historically, the ADA has not recognized LGBTQ-related conditions as covered disabilities. Specifically, Section 12211 of the ADA contains a number of exclusions—including “homosexuality” and “bisexuality” on the grounds that they are not “impairments” at all. The ADA also excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.”

“Transsexualism” and “gender identity disorders not resulting from physical impairments” seem to be 1990s-era terms for the state of being what we call today “transgender.” And based on the other conditions that “transsexualism” and “gender identity disorders” are grouped with, it appears that in 1990, Congress considered these to be “anti-social” behaviors. Other “anti-social” behaviors not covered under the ADA include peeping, child molestation, compulsive stealing, and compulsively setting things on fire.

Recent Third Circuit Ruling – Blatt v. Cabela’s Retail, Inc.

On August 15, 2014, a transgender woman filed Title VII and ADA claims against her former employer, claiming that she had suffered disability discrimination and retaliation based on her “gender dysphoria.” In her case (styled Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JLS), the plaintiff alleged that her gender dysphoria was characterized by clinically significant stress and substantially limited one or more of her major life activities, including but not limited to, interacting with others, reproducing, and social and occupational functions.

The employer sought early dismissal of the ADA claims on the grounds that gender identity disorders are expressly excluded from coverage under Section 12211 of the ADA. In response, the plaintiff argued that excluding gender dysphoria from ADA protection violated the Equal Protection Clause of the Fourteenth Amendment—a particularly novel argument in light of recent U.S. Supreme Court, including the 2015 gay marriage opinion (Obergefell v. Hodges, 135 S. Ct. 2584 (2015)). However, the district court judge sidestepped this Equal Protection issue altogether.

Instead, the judge ruled that a plaintiff’s “gender dysphoria” could be an ADA-protected disability—despite the language in Section 12211 excluding “gender identity disorders not resulting from physical impairments”— if the dysphoria caused “clinically significant stress and other impairments.” In reaching its holding, the court noted that two categories of conditions are explicitly excluded from protection under the ADA: (1) non-disabling conditions concerning sexual orientation and identity (e.g., homosexuality and bisexuality), and (2) conditions associated with harmful or illegal conduct (e.g., pedophilia and kleptomania). The court then narrowly interpreted these exceptions and found that the ADA does not exclude protection of “conditions that are actually disabling but that are not associated with harmful or illegal conduct” – such as the gender dysphoria affecting the plaintiff.

In other words, the court ruled that a person with an ADA-excluded condition may also have medical conditions that are covered by the ADA. For many commentators, the judge relied on solid ADA-rationale applied to other conditions. For example, pregnancy is not an ADA-protected disability in itself. But if a pregnant woman develops a related condition such as preeclampsia (high blood pressure associated with pregnancy that can result in a stroke or permanent liver damage), she may have a protected disability based on the pregnancy-related medical condition, although not based on the pregnancy itself. Similarly, although homosexuality is not an ADA-protected disability, a gay man with HIV would have a disability based on the HIV condition.

Using the Blatt court’s rationale, a transgender individual with “gender dysphoria” would be no different.  For example, clinical depression caused by discrimination against an individual because he/she was transgender would clearly qualify as an ADA-protected condition under the rationale used in Blatt. Conversely, the individual’s transgender status—in and of itself—would not be entitled to ADA protection, as that is clearly excluded under Section 12211.

The court also noted that its interpretation of the ADA is consistent with the Third Circuit’s mandate that the ADA is “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society. . . [and] must be broadly construed to effectuate its purposes.” Thus, the judge wrote any exceptions in the ADA “should be read narrowly in order to permit the statute to achieve a broad reach.”

This is yet another case in a recent wave of litigation concerning protections for LGBTQ individuals under the federal employment statutes. This ADA challenge represents a different approach to gender equity litigation that will warrant close monitoring to see how it impacts the development of jurisprudence—especially since it remains to be seen if the defendant will appeal the ruling, or if other jurisdictions will apply the Blatt rationale. In the meantime, employers should be mindful of their duties under the ADA to accommodate disabling impairments, even if the underlying condition is arguably not covered by the ADA.

 

 

Late Tuesday afternoon (November 22, 2016), a federal judge in Texas entered a nationwide preliminary injunction blocking implementation of a highly controversial rule that was set to take effect in less than 10 days (on December 1, 2016).  The judge’s injunction temporarily prevents the U.S. Department of Labor (DOL) from enforcing its controversial Proposed New Overtime Rule that would significantly expand overtime eligibility for millions for public and private sector employees.

In September 2016, two separate lawsuits were filed in U.S. District Court in the Eastern District of Texas challenging the legality of the DOL’s proposed changes.  The lawsuits—one filed by a group of 21 states and the other filed by a conglomerate of over 50 nationwide business groups and trade organizations—both sought to temporarily enjoin and permanently strike the DOL’s Proposed Rule from taking effect.  The federal court later consolidated the two suits into one case.

In granting the preliminary injunction on Tuesday, U.S. District Judge Amos Mazzant ruled that the states and businesses were able to show ”a likelihood of success in their challenge” of the Proposed Rule, as well as a likelihood of “irreparable harm” if the Proposed Rule went into effect on December 1^st.  In contrast, Judge Mazzant felt that the DOL failed to show it would be harmed if implementation of the Proposed Rule were delayed.

In their lawsuits, as well as during oral argument on their requests for the preliminary injunction, the states and businesses argued that the DOL’s rule would force many state and local governments, as well as private businesses, to increase their employment costs substantially.  If enacted, the Proposed Rule would double the minimum salary threshold—from the current $23,660 to the proposed $47,476—required for an employee to qualify for the Fair Labor Standards Act’s (FLSA) white collar exemptions.  To this end, the states and businesses contested the DOL’s policy behind the change to the Proposed Rule by arguing that the federal agency relied too heavily on the “salary level” earned by an employee and not enough on the kind of work an employee performs.  The states and businesses argued that such a policy disregarded the original text of the FLSA.

In initially siding with the states and businesses, Judge Mazzant held that the DOL wasn’t entitled to deference in creating the Proposed Rule, and that Congress intended the exemption to apply based on the tasks an employee actually performs.  The judge recognized that the DOL has “significant leeway” to establish the types of duties that might qualify an employee for the white collar exemptions, but that nothing in the text of the FLSA indicated Congress’s intention for the DOL to define employee classifications with respect to a minimum salary level.  Judge Mazzant ultimately opined that the DOL’s enactment of the Proposed Rule appeared to exceed its delegated authority and as a result, ignored Congress’s intent behind the FLSA.

In issuing the preliminary injunction, Judge Mazzant also agreed that the states and businesses would suffer irreparable harm being forced to comply with the new costs associated with the Proposed Rule—harm which could not be redressed or undone if the Court later decided in their favor in permanently striking the Proposed Rule. “Due to the approaching effective date of the final rule, the court’s ability to render a meaningful decision on the merits is in jeopardy,” Judge Mazzant said. “A preliminary injunction preserves the status quo while the court determines the department’s authority to make the final rule as well as the final rule’s validity.”

Representatives of the states and business groups who initiated the legal challenge were quick to praise the Court’s decision.  “Businesses and state and local governments across the country can breathe a sigh of relief now that this rule has been halted,” said Nevada Attorney General Adam Paul Laxalt.

Representatives for the DOL have yet to comment, so it remains to be seen if the federal government will simply allow the injunction to remain in place pending final resolution of the consolidated lawsuits.  Alternatively, the DOL could choose to pursue a countermanding order on appeal.  (However, since any appeal would be heard by the Fifth Circuit, the success of such an appeal is far from a certainty.)  Lurking above all of these legal maneuvers is the recent election of President Donald Trump, who has yet to publicly announce his intentions for the Proposed Rule.

So, while it still remains possible the Proposed Rule could ultimately take effect (either in full or in some modified form), the Court’s ruling on Tuesday is certainly a welcome reprieve for U.S. employers—at least for the time being.