disability

ADA: Disabled Employees Must Meet Productivity Standards

Robert C. Lockwood
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Disabled employees must meet the same productivity standards as other employees.

The Americans with Disabilities Act (“ADA”) is intended to ensure that individuals with disabilities do not suffer discrimination in the workplace.  Even so, the ADA does not grant special status to individuals with disabilities, so that they are treated more favorably than other employees.  One of the key requirements of any workplace is productivity.  Disabled employees must meet the same productivity standards as other employees.

This concept is acknowledged even by the EEOC:  “An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job.”  The EEOC’s entire discussion of performance standards can be found here:  Applying Performance And Conduct Standards To Employees With Disabilities.  As you probably know, the ADA requires that “reasonable accommodations” must be made for disabled employees.  But, the EEOC also acknowledges that an employer is not required to decrease productivity standards as an “accommodation”:  “Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

The Eleventh Circuit Court of Appeals recently upheld productivity requirements in Singleton v. The Public Health Trust of Miami-Dade County, No. 17-12282, 2018 WL 679389 (11th Cir. Feb. 2, 2018).  In Singleton, a physician was required to treat a minimum number of patients each day.  Yet, it was undisputed that he was unable to meet those productivity requirements.  As a result, even though the physician may have been “disabled,” he was not a “qualified” individual with a disability.  A “qualified” individual must be able to perform the essential functions of the job.  Because productivity was an essential function, and the physician could not perform that function, he could be terminated without violating the ADA.

Employers should always proceed cautiously when contemplating the termination of a disabled employee.  In fact, the EEOC suggests that an employer might have a duty to eliminate “marginal” functions of a job in order to assist an employee in meeting productivity requirements.  Therefore, I strongly encourage Alabama employers to conduct a thorough analysis  before terminating a disabled employee.

Judge Recognizes Gender Dysphoria as a Disability

Robert C. Lockwood
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A federal judge recently recognized gender dysphoria as a disability.

A federal judge in Pennsylvania recently found that an employee with gender dysphoria could sue under the Americans with Disabilities Act.  See Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Pa. May 18, 2017).  Kate Lynn Blatt claimed that she was terminated by Cabela’s because of her sex and disability — gender dysphoria.  Cabela’s asked United States District Court Judge Joseph F. Leeson, Jr. to dismiss the ADA claims.

The ADA’s express language says that the term “disability” does not include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”  42 U.S.C. §12211 (emphasis added).  And, Ms. Blatt claimed that she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder.”  Blatt, 2017 2178123 at *2 (emphasis added).

While Ms. Blatt’s claim would appear to be barred by the ADA’s definition of a disability, Judge Leeson refused to dismiss the claim.  He found that the ADA intended to only exclude those people “identifying” with a different gender.  But, gender dysphoria “goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”  Blatt, 2017 2178123 at *2.

Judge Leeson’s opinion appears to be an effort to avoid a constitutional question.  Ms. Blatt claimed that the ADA’s exclusion of gender identity disorders violated her Equal Protection Rights.  In order to avoid that issue, Judge Leeson found that Ms. Blatt was not excluded.  But, in avoiding the constitutional question, Judge Leeson may have extended the ADA beyond its intended scope.  The ADA, and its definition of “disability,” was passed by Congress in 1990.  At that time, the Third Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders merely used the term “gender identity disorder.”  But, in 1994, the Fourth Edition of that Manual replaced the term “gender identity disorder” with the more descriptive term “gender dysphoria.”  Kothmann v. Rosario, 558 Fed. Appx. 907, 908 n.2 (11th Cir. 2014).  Thus, Judge Leeson’s attempt to distinguish between “gender identity disorder” and “gender dysphoria” may be an error based on differences in time and definitions.

Nevertheless, Blatt provides yet another reason for employers to proceed cautiously when disciplining transgender employees.  Under Title VII’s sexual discrimination provisions, employers must be careful to avoid disciplining transgender employees for failure to conform to gender stereotypes.  Discussion on Transgender Protections. Now, employers must also consider whether an employee’s gender dysphoria is a disability and entitled to protection.