Pay attention HR! Transgender employees may have ADA (disability) rights too.

TransGender Symbol Color.pngMy decision to sit at the computer and begin blogging at 10:48 PM on a Sunday has backfired on me, for sure.

This will teach me to go out for a few drinks after my kid’s soccer game.

That is, on Friday before I left work I read this headline, “Transgender ADA Case Against Cabela’s OK’d,” in The Legal Intelligencer. And, I thought to myself that I really needed to read the article and the case and then blog about it for Monday. The article was short and the opinion (here) from Eastern District of Pennsylvania Judge Joseph Leeson in Blatt v. Cabela’s Retail, Inc. is only six pages. However, the constitutional/textual nuance of the opinion is largely lost on me — at least for now.

Suffice it to say, here’s the money shot:

“[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 Blatt’s gender dysphoria…”

Or, in plain English, because the Americans with Disabilities Act covers someone who has a disability and may need a reasonable accommodation to perform the essential functions of the job, a transgender employee could be covered too if that employee has a disability which creates trouble interacting with others.

What is Gender Dysphoria?

According to the American Psychiatric Association:

Gender dysphoria involves a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify. People with gender dysphoria may be very uncomfortable with the gender they were assigned, sometimes described as being uncomfortable with their body (particularly developments during puberty) or being uncomfortable with the expected roles of their assigned gender.

People with gender dysphoria may often experience significant distress and/or problems functioning associated with this conflict between the way they feel and think of themselves (referred to as experienced or expressed gender) and their physical or assigned gender.

How do you accommodate an employee who has trouble functioning around others?

Good question.

However, Judge Leeson’s opinion was entered after a motion to dismiss. So, there’s plenty of case left to litigate.  Or, we may see an interlocutory appeal to the Third Circuit.

For now, the takeaway is that discrimination claims involving transgender employees could go beyond Title VII (sex stereotyping and, possibly, sexual orientation), but appear to extend to the ADA. Therefore, there may be a duty to accommodate a transgender employee with gender dysphoria, provided that there exists a reasonable accommodation to perform the essential functions of the job. Presumably, how to accommodate that individual begins with that person identifying the disability and asking for an accommodation. Then, that employee and the employer would engage in a good faith, interactive process to see if an accommodation exists that would enable to the employee to perform the essential functions of the job without creating undue hardship for the employer.

For more on Judge Leeson’s decision, presumably from authors with more time to write their articles, check out:

  • In landmark ruling, trans woman can sue under Americans with Disabilities Act (LGBTQNation.com)
  • Workers with gender dysphoria are entitled to protection under the ADA, federal judge rules (ABA Journal)
  • Court: Transgender people can sue under ADA (Washington Blade)

And for more on how to support transgender employees during their transition, check out my interview with HR Dive.

Image Credit: By Creator RUOwn work, CC BY-SA 4.0, Link

 

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