Kate Lynn Blatt, a transgender woman, sued her employer, Cabela’s Retail Inc. (“Cabela’s), in Pennsylvania’s Eastern District Court, under the Americans with Disabilities Act (“ADA”), based on Ms. Blatt’s diagnosis of Gender Dysphoria, also known as Gender Identity Disorder (“GID”).
Cabela’s asked the judge to have Ms. Blatt’s case dismissed from court, arguing that GID is specifically excluded from the definition of “disability” under the ADA.
Cabela’s defense, at the time, made sense. From the time of its effective date in 1990, the Americans with Disabilities Act (“ADA”) notably excluded people with gender identity disorders. Even when amended in 2008 under the ADA Amendments Act, gender identity disorders were excluded.
On May 18, 2017, however, Pennsylvania’s Eastern District Court issued a landmark ruling – the court held that Ms. Blatt’s diagnosis of Gender Dysphoria, or GID, should be understood to go, in the court’s words, “beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling”. In viewing GID as more than a disorder of gender identity, the court held that Ms. Blatt could bring claims against her employer under the ADA.
What does this mean for Pennsylvania employers?
Although gender identity is not a specifically named protected classification under federal or Pennsylvania state law, transgender individuals who are diagnosed with Gender Dysphoria or GID probably are eligible for protection under the ADA, which means that when otherwise qualified for the position, individuals with GID probably are, under the ADA, protected from employment discrimination, harassment, and retaliation. In turn, the ADA’s protections also extend to the offering of reasonable accommodations.
Here are some DO’s and DON’T s to guide you in applying what is for many a brand new understanding of the ADA:
- DO engage in the interactive process and provide reasonable accommodations to otherwise qualified individuals who have been diagnosed with Gender Dysphoria or GID. Depending on the extent of the disability and the burdens placed on the employer, examples of reasonable accommodations would include transition planning, bathroom use adjustment, and any other accommodation identified by the employee or the employee’s physician that would not create an undue burden for the employer.
- DO investigate every claim of harassment and encourage reporting. Now more than ever, all complaints of harassment based on gender identity, even where seemingly minor, should be fully investigated and addressed as appropriate. In many cases of workplace harassment, the antagonism starts out with seemingly minor incidents and, if not addressed, escalates to the level of unlawful harassment. (Remember, even if an employee reporting harassment asks the employer not to do anything, it is the employer’s legal obligation to timely investigate all claims of harassment, regardless of whether the employee wants to pursue the claim or not.)
- DO NOT assume that every transgender employee has a “disability” within the meaning of the ADA. While GID or Gender Dysphoria is a common diagnosis for transgender individuals, not all transgender individuals have a diagnosed disorder or consider themselves to be “disabled” or even impaired. Under the ADA, regarding an employee as “disabled ” who does not claim to be disabled may create legal liability in and of itself. With this in mind, it is advisable to avoid treating transgender people any different from others of the gender that they identify with, unless the employee comes to their employer and asks for an accommodation.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.