Category Archives: LBGT Employees

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 Chair of the Litigation Department atFlaster Greenberg PC. 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.

Update Gay-dar Beeping Loudly.

As previously reported, legal developments and protections for same-sex marriage and lesbian, gay, bisexual and transgender (LGBT) employees have been fast and furious.

Most importantly and recently, on July 21 President Obama issued an Executive Order banning discrimination by federal contractors on the basis of sexual orientation and gender identity. See http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen. This affects roughly 20 percent of the U.S. workforce.

In addition, the EEOC and plaintiffs’ lawyers have been successfully pursuing claims on the theory that discriminating against employees based on sexual orientation or gender identity is equivalent to sex discrimination, as any such discrimination is based on an employee’s failure to conform with gender stereotypes as to sexual partners and/or gender identity. The most recent success in this respect is Barrett v. Pennsylvania Steel Co. In that case, decided this month, a federal judge in Philadelphia ruled that the alleged mocking of a gay office worker, including references to him as “Mary” and “gay” by male coworkers, was sufficient to establish that the same-sex harassment was based on his failure to conform to male gender stereotypes, and thus a violation of federal and state laws against sex discrimination. It is the latest in a long line of cases expanding the coverage of Title VII of the Civil Rights Act of 1964.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. 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.

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