Yes, Kate Lynn, Gender Dysphoria Can Be a Disability

The popular press has touted as “unprecedented” a decision in May by a federal judge in Pennsylvania that a transgender employee could move forward with her suit for discrimination under the Americans with Disabilities Act (ADA).

But the reality of Blatt v. Cabela’s Retail, Inc., is not quite as novel as the press would suggest. Rather than recognize being transgendered as a disability per se, the court simply acknowledged that Kate Lynn Blatt’s claim of “Gender Dysphoria, also known as Gender Identity Disorder,” which caused her severe physical and psychological distress, could qualify as a disability under the ADA.

Judge Joseph F. Leeson, Jr. rendered the decision carefully, to avoid ruling on Blatt’s constitutional challenge to the statutory language of the ADA, which expressly excludes from the definition of covered disabilities “homosexuality and bisexuality,” “gender identity disorders not resulting from physical impairments,” and “sexual behavior disorders,” among other conditions.

Rather than determine whether such exclusions deny equal protection to individuals because of their sex, in violation of the Constitution and following the Supreme Court’s gay-marriage decision in Obergefell v. Hodges (2015), Judge Leeson focused on the specific allegations in the complaint. He noted that Blatt did not merely allege that she was disabled because she has gender dysphoria. Instead, she specifically pled how the condition caused her clinically significant stress and other impairments that substantially limited her major life activities, including “interacting with others, reproducing and social and occupational functioning.”

The exclusions of the ADA are to be construed narrowly, Judge Leeson ruled, while conversely, the coverage of the ADA “must be broadly construed” to effect its purpose of “eliminate[ing] discrimination against the disabled in all facets of society.” As such, her claim of a disability of gender identity disorder was allowed to proceed, despite the statute’s express exclusion of “gender identity disorders.”

No doubt that this is a victory for the transgendered community, because some claims of gender identity disorder may now proceed, despite the exclusion. But at its heart, the ruling simply reaffirms an ADA basic: an employee claiming disability discrimination must identify how he or she is substantially limited in a major life activity. Merely putting a label on the condition – such as “gender dysphoria” or “diabetic” — will not be dispositive for or against the claim.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Americans with Disabilities Act, Rehabilitation Act

Next Export, ‘The Biggest Loser.’

Unhealthy American diets crossed the pond to Europe decades ago, and now disability law relating to obesity is gasping to catch up.

The European Court of Justice ruled recently that severely overweight employees can be considered disabled, and therefore protected against discrimination under various labor laws governing the European Union. In the case at issue, Karsten Kaltoft, a 350-pound childcare worker, claimed she had been unfairly fired because of her obesity.

Slow Europeans. American courts have been trying to get their hands around this weighty issue since the 1980s. The big bottom line: in the U.S. morbid obesity and the perception of disability due to obesity can be protected under the Americans with Disabilities Act, the Rehabilitation Act, and similar state laws.

Americans with Disabilities Act, New York State Human Rights Law

Ouch, Pharmacist’s Fear of Needles Causes Severe Pain to Rite Aid.

A federal jury in New York has awarded a long-time pharmacist at Rite Aid $2.61 million after the drugstore fired him for refusing to take part in flu immunization training due to his fear Scared of needles of needles.

Plaintiff Christopher Stevens established that he had worked successfully as a pharmacist for 30 years, including 14 years at Rite Aid and a predecessor, without being required to administer injections. When Rite Aid informed him in 2011 that he was required to attend flu immunization training, including the administration of injections, Stevens informed the company, via a doctor’s note, that he had trypanophobia, or fear of needles. Trypanophobia is recognized by the American Psychiatric Association, and caused Stevens to experience profuse sweating, low blood pressure, pallor and anxiety when undergoing or observing procedures involving the use of needles, according to the evidence. (Note to self: I wasn’t a crybaby at those doctor’s visits as a child, I had trypanophobia.)

Stevens requested an accommodation to avoid administering flu immunizations. Despite the doctor’s note and the request, Rite Aid continued to schedule Stevens for training, and ultimately fired him when he refused to undergo the training.

On January 22, a jury awarded Stevens $485,633 in back pay, $1,227,188 in front pay, and $900,000 in emotional distress damages.

The lesson: The Americans with Disabilities Act, as amended, and the New York State Human Rights Law can be interpreted broadly to cover rare conditions such as fear of needles. Before you get “stuck” for failure to accommodate, “immunize” your company by taking steps to determine whether a reported condition might qualify as a disability, entitling the employee to reasonable accommodations and freedom from discrimination or retaliation.

Americans with Disabilities Act, EEOC, Family and Medical Leave Act, FMLA, Pregnancy Discrimination Act

EEOC Gives Birth to Pregnancy Rules – Father Unknown.

In case you missed it, the U.S. Equal Employment Opportunity Commission (EEOC) has issued 40-plus pages of new guidance on pregnancy discrimination and related issues, including a fact sheet and Q&A guide. See http://www.eeoc.gov/laws/types/pregnancy_guidance.cfm.

No new law, Executive Order or court decision spawned these publications, nor do they create any new laws. But the guidance does illustrate that the EEOC has made pregnancy discrimination a top priority. The guidance also helps employers address common pregnancy-related workplace issues, and the overlapping coverage of the Pregnancy Discrimination Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and laws relating to lactation breaks and working parents.

Regardless of whether you read the EEOC guidance, think about your mother and do the right thing: treat pregnant workers fairly and equally in all respects.

ADA, Americans with Disabilities Act, US Court of Appeal - Thurd Circuit

Disabled employee loses ADA claim for refusing to try accommodation.

An employee who refuses to try a reasonable accommodation that the employer offers for her disability loses her ability to claim a violation of the Americans with Disabilities Act (ADA), the United States Court of Appeal for the Third Circuit ruled recently.

In Yovtcheva v. City of Philadelphia Water Department, plaintiff Silvia Yovtcheva, a chemist, claimed she was suffering health problems that were caused by exposure to a particular chemical with which she had to work. The Water Department offered her a partial-face respirator (which expert testimony later established would have addressed her health problems), but she refused to try it.

As a result of her refusal to try the respirator, which the Third Circuit found was a reasonable accommodation, the court determined that she was not a qualified individual with a disability and could not maintain a claim for disability discrimination against the defendant.

This decision reinforces the fact that the ADA is a two-way street. Both the employer and the employee must engage in the interactive process to identify accommodations for any disability. Once a disability is established, neither side can back out of the process and expect to prevail.

ADA, Americans with Disabilities Act, EEOC

Performance Problem + Disability = Request for Accommodation?

Federal law and court decisions under the Americans with Disabilities Act have long held, in general, that an employee must request an accommodation for his or her disability before the employer has a duty to explore accommodation options.

But recent case law and updated EEOC regulations make clear that when an employee identifies a disability as a cause for his or her performance problems, the employee has put the employer on notice of a possible need for an accommodation. This triggers an employer’s duty to engage in an interactive process with the employee to determine whether the disability can be reasonably accommodated.

In Thomas v. Bala Nursing & Retirement Center (E.D. Pa. 2012), for example, a nurse defeated summary judgment when she communicated that her attendance problems were the result of severe fatigue caused by anemia, but did not explicitly ask for a reasonable accommodation. The federal court held that the notice requirement for an accommodation under the ADA is met when the “employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for the accommodation.”

Americans with Disabilities Act, Disability Discrimination

Obese are throwing their weight around in court

The PLUS Blog reports that obese individuals claiming disability discrimination are faring better in the courts, with the EEOC obtaining a settlement in July in Texas on behalf of a morbidly obese claimant, and courts in Louisiana, Mississippi, Montana and New York recently refusing to dismiss discrimination suits brought by overweight plaintiffs.

A number of different developments have converged to support the trend, including (1) the fact that more than 35 percent of American adults are now obese; (2) the advancement of medical technology that can now pinpoint discrete physiological conditions that can cause obesity – converting it from a lifestyle issue to a medical condition; and (3) the ADA Amendments Act and related EEOC guidelines, which focus on perceptions more than whether a person is actually disabled.

The ADA is clear that being overweight, in and of itself, is not a protected disability or impairment, but rather a mere physical characteristic. On the other hand, the EEOC Compliance Manual states that “severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” Michigan is the only state that makes it unlawful for employers to discriminate on the basis of weight.

Takeaway: Don’t make employment decisions based on the weight or size of the employee, especially if he or she is more than 100 percent over the norm. Focus on the essential functions of the job.

Americans with Disabilities Act

You can’t phone it in – telecommuting usually not a reasonable accommodation

Companies occasionally receive requests from employees with disabilities to work from home – or “telecommute.” Working in your pajamas and slippers surely sounds tempting, especially if you are sick or disabled, but is an employer required to allow it?

A Michigan federal court recently surveyed recent cases on the issue and concluded that “in general courts have found that working at home is rarely a reasonable accommodation.”

In EEOC v. Ford Motor Co., Jane Harris worked as a buyer and had escalating performance issues. She also suffered from irritable bowel syndrome (a disturbing condition that seems to be more common with employees these days). As a result of her IBS, Harris began missing more and more work, contributing to declining performance and prompting her to request to work from home up to four days per week, to accommodate her disability.

Ford had a telecommuting policy, but nevertheless rejected the request, explaining that her job required “regular interactions with her team and with a number of contacts both inside and outside of Ford, and these interactions could not be adequately handled over the phone or via email. . . the spontaneous flow and exchange of information, which is critical to the group problem-solving component of her job, would be compromised if issues had to be put on hold until a conference call could be scheduled.”

Instead, Ford offered to move her desk close to the restroom (I am not making this up), or find her a different job within Ford that might allow telecommuting (great demonstration of a supportive employer). Harris rejected these offers, and sent an email complaining that the denial of her request violated Ford’s Americans with Disabilities Act policy. When Ford asked her to provide a written statement explaining her complaint (excellent move by Ford), she declined.

While the Americans with Disabilities Act (ADA) does require an employer to provide a reasonable accommodation to a qualified employee with a disability, and to engage in an individualized analysis of any such request, the court found against Harris and the EEOC, which sued on her behalf. First, her frequent absenteeism meant she was not “qualified” for the job (quoting a prior decision that an employer is not obligated to “tolerate erratic, unreliable attendance,” and concluding that “regular attendance is a basic requirement of most jobs”). Second, the court refused to second-guess Ford’s business judgment that the essential functions of the job could not be successfully performed working from home four days per week.

While there are examples of “exceptional” jobs, such as an outside salesperson or medical transcriptionist, that can be performed from home, the court noted numerous decisions concluding that working at home is rarely a reasonable accommodation “because most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”

Employers still should conduct an individualized assessment whenever such requests are made, and engage in an interactive dialog with the employee, but in most cases working from home for all or most of the time will not be a reasonable accommodation. To solidify this position, employers should consider addressing the issue of whether working in the office or plant is necessary, and why, in the written job description.

Employment Law Update

My Blog – Not Legal Advice

Category Archives: Americans with Disabilities Act

Yes, Kate Lynn, Gender Dysphoria Can Be a Disability

Next Export, ‘The Biggest Loser.’

Ouch, Pharmacist’s Fear of Needles Causes Severe Pain to Rite Aid.

EEOC Gives Birth to Pregnancy Rules – Father Unknown.

Disabled employee loses ADA claim for refusing to try accommodation.

Performance Problem + Disability = Request for Accommodation?

Obese are throwing their weight around in court

You can’t phone it in – telecommuting usually not a reasonable accommodation

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