It seems like it has been a long time since transgender issues were near the top of the list of employer concerns. Most employers have revised personnel policies to address transgender issues. Those that have not should give serious consideration to reviewing their existing employment policies to ensure that they have procedures in place to address issues that may arise with transgender employees. Now, there is yet another issue to consider when addressing transgender issues in the workplace.
In 2017, a new wrinkle in the transgender landscape reminded all employers of the need to stay current on transgender issues. In Blatt v. Cabela’s Retail Inc., a federal district court in Pennsylvania expanded protections under the ADA to include those diagnosed with gender dysphoria. Prior to Blatt, employers did not have to consider the ADA when working with transgender employees because of a specific exclusion that addresses gender disorders.
The Blatt case involved an employee who was transitioning and had actually been diagnosed with “gender dysphoria,” a recognized medical condition. The employee had asked to use female restrooms and requested a female name tag and female uniforms. Her requests to use female restrooms were denied and she was forced to wear a male name tag. In addition, she was subjected to degrading and discriminatory comments prior to being terminated. She filed suit alleging discrimination and retaliation under the ADA.
Cabela’s filed a motion to dismiss, alleging that the ADA specifically excludes gender identity disorders. The ADA does, in fact, exclude gender identity disorders as mentioned above. However, the court, in analyzing Cabela’s motion to dismiss, held that the exclusion can be read as having two distinct categories. The first category includes non-disabling conditions that concern sexual orientation or identity. The second category involves disabling conditions that are associated with harmful or illegal conduct. The court held that the ADA exclusion was not intended to exclude disabling conditions associated with harmful or illegal conduct.
More specifically, the court took into account the fact that Blatt had been diagnosed with gender dysphoria and that the condition met the ADA definition of disability in that it impairs one or more major life activities. In Blatt’s case, the impaired life activities were interacting with others, reproducing and social and occupational functioning. The court held that exceptions to the ADA should be read narrowly so as to allow the statute to achieve a broad reach, namely protecting those who have a condition that impairs one or more major life activities.
So now, in addition to having policies that address the variety of transgender issues that may arise in the workplace, employers need to be aware that they will also need to consider the ADA and its accommodation requirements when working with transgender employees in the workplace. If an employee has been diagnosed with gender dysphoria, then employers should be prepared to address requests made by that employee as requests for reasonable accommodation under the ADA.
As always, if you have questions regarding this or any other employment or labor related matters or if you need to update your personnel policies, please do not hesitate to contact Ancel Glink.
