Court May Expand Americans With Disabilities Act Protection to Transgender Employees

            The Americans with Disabilities Act (“ADA”) specifically excludes “transsexualism…[and] gender identity disorders [“GID”] not resulting from physical impairments” (the “GID exclusion”) from its definition of “disability,”[1] but the Department of Justice (“DOJ”) has asked a Pennsylvania court to narrow the ADA’s GID exclusion by classifying gender dysphoria as a disability under the ADA.[2]  If the court grants the DOJ’s request, transgender employees would likely be covered under the ADA and employers will likely be required to engage in the interactive process when a transgender employee requests an accommodation.[3] 

A.        The DOJ’s Statement Asks Court to Narrow the GID Exclusion.

            In Blatt v. Cabela’s Retail, Inc., the plaintiff, a male to female transgender employee, claims her employer (the retailer Cabela’s) violated ADA when it refused to accommodate her gender dysphoria by denying her requests to use the women’s restroom and wear a nametag with her correct name.[4]  Cabela’s argues that the ADA’s GID exclusion applies, and Plaintiff is not disabled as defined by the ADA.  Plaintiff subsequently challenged the constitutionality of the GID exclusion on the grounds that it violates the Equal Protection Clause.[5] 

            In November, the DOJ weighed in and suggested the court avoid the constitutional issue presented by narrowing the GID exclusion to permit gender dysphoria as a disability.  Gender dysphoria recently replaced GID as the term denoting transgender status,[6] and is defined as “a persistent unease with having the physical characteristics of one’s gender, accompanied by strong identification with the opposite gender and a desire to live as or to become a member of the opposite gender.”[7]  The DOJ argues that gender dysphoria “has physiological or biological roots” and therefore falls outside the scope of the GID exclusion because it “result[s] from [a] physical impairment[.]”[8]  The DOJ also points to the court’s “obligation to construe the ADA’s protections broadly (and thus to treat the GID Exclusion narrowly)” and notes that there is essentially no legislative history regarding the GID exclusion.  Accordingly, the DOJ concludes that “the GID Exclusion should be construed narrowly such that gender dysphoria falls outside its scope.”[9]  The Pennsylvania court heard oral arguments regarding this question on December 10, 2015, and will issue its decision in the near future.

B.        The Potential Impact on Employers

            If the court narrows the GID exclusion,[10] it would expand the ADA’s disability definition to include employees with gender dysphoria.  Accordingly, employers would need to engage in the interactive process with transgender employees who request accommodations.  While the change would not require employers to grant the employee’s specific accommodation request, employers would be required to determine the essential functions of the job, identify barriers to job performance by consulting with the employee to learn the employee’s precise limitations, and explore accommodations that would be most effective.  In the context of whether a transgender employee can use the bathroom of the gender the employee identifies with, the employer would be able to consider the impact of the accommodation upon the operation of the facility when determining whether an accommodation is reasonable, however that is only one of several factors considered.[11]  If the GID exclusion is narrowed, employers should educate and train its front-line management on how to handle requests from transgender employees.  A manager who dismisses a transgender employee’s accommodation request, without engaging in the interactive process, would expose the employer to liability for discrimination and failure to accommodate under the ADA.  When the court issues its decision, we will update you on the outcome and best practices moving forward.

 

[1] 42 U.S.C. § 12211(b)(1). 

[2] See Second Statement of Interest of the United States of America, Blatt v. Cabela’s Retail, Inc., Civil Action No. 5:14-cv-4822-JFL (E.D. Pa. filed Aug. 15, 2014) (ECF No. 67).  The DOJ essentially claims that gender dysphoria is a physical impairment.

[3] Notably, transgender employees seeking accommodations would still need to show that gender dysphoria substantially limited a major life activity.  However, the Supreme Court has held that reproduction and the sexual dynamics surrounding it constitute a major life activity.  Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (“Reproduction and the sexual dynamics surrounding it are central to the life process itself”).  Accordingly, it is likely that transgender employees could make such a showing.

[4] Blatt v. Cabela’s Retail, Inc., Civil Action No. 5:14-cv-4822-JFL (E.D. Pa. filed Aug. 15, 2014). 

[5] See Notice of Constitutional Question, Blatt v. Cabela’s Retail, Inc., Civil Action No. 5:14-cv-4822-JFL (E.D. Pa. filed Aug. 15, 2014) (ECF No. 24).  Plaintiff asserts that the GID exclusion fails strict, intermediate, and rational basis review. 

[6] See Pl’s. Opp’n to Def.’s Mot. to Dismiss, Blatt v. Cabela’s Retail, Inc., Civil Action No. 5:14-cv-4822-JFL (E.D. Pa. filed Aug. 15, 2014). 

[7] The American Heritage Medical Dictionary (2007).  Gender dysphoria is also commonly referred to as GID. 

[8] See Second Statement of Interest of the United States of America, supra note 2.

[9] Id.

[10] The DOJ argues that the GID Exclusion would still be applicable to an asserted GID that does “not result[] from physical impairment.”  See Second Statement of Interest of the United States of America, supra note 3.  However, given the broad definition of gender dysphoria, it is difficult to imagine what the GID exclusion would actually exclude.

[11] Other factors such as the associated costs and the financial resources of the company would also be considered in determining whether such a request is reasonable.  See 29 C.F.R. § 1630.2(p).

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