Judge Recognizes Gender Dysphoria as a Disability

gender dysphoria ADA
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.

Trust Your “Company Doctor” and Violate the ADA

Physician Disability Discrimination
Reliance Upon a Doctor’s Advice Can Result in Disability Discrimination

Relying upon advice from a physician could cause employers to unintentionally commit disability discrimination in violation of the Americans with Disabilities Act (ADA).  The ADA permits employers to terminate employees with a disability if those employees represent a “direct threat” to the safety of themselves or others.  Employers frequently rely upon doctors to determine if the employee represents a “direct threat.”  One federal judge in Alabama has found that reliance upon a doctor’s opinion on the “direct threat” issue can be discrimination.  See Pollard v. Drummond Co., Inc., No. 2:12-CV-03948-MHH, 2015 WL 5306084 (N.D. Ala. Sep. 10, 2015).

In Pollard, Mr. Pollard worked in a coal mine and injured a finger on-the-job.  He was sent to an in-house physician for treatment of the finger injury and disclosed to the physician that he was taking a prescribed narcotic, methadone, for back pain.  Based upon that narcotic prescription, the in-house physician found that Mr. Pollard represented a “direct threat” to himself or others working with heavy machinery in the mine.  Mr. Pollard then used the terms of a collective-bargaining agreement to obtain review by an independent physician.  That second physician examined Mr. Pollard and also concluded that he represented a “direct threat” to himself or others.

Despite opinions from those two physicians, Judge Madeline Hughes Haikala found issues requiring a jury trial on whether Drummond Coal Company committed disability discrimination.   The “direct threat” defense must be based upon “an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.”  Judge Haikala’s opinion hinged on two crucial legal findings.  First, “[a]n employer may not rely upon the recommendation of a physician who, like [the company doctor], conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations.”  Pollard, 2015 WL 5306084 at *7.  Additionally, “an assessment based on the known possible side effects of medication, as opposed to an individualized inquiry into a patient’s present ability to perform his functions, is insufficient.”  Id.   Based upon those legal findings, as well as the fact that Mr. Pollard apparently performed his job for three years without any manifestation of side effects, Judge Haikala refused to dismiss the case based upon the “direct threat” defense.

The Pollard opinion is a difficult one for employers who rely upon physicians when making fitness-for-duty determinations.  Practically, Pollard forces employers to interject themselves into determinations made by health care professionals.  Employers cannot simply rely upon a doctor’s opinion regarding an employee’s ability to work.  Instead, Pollard effectively requires employers to second-guess physicians with questions like:  (1) Did you conduct an extensive examination of this patient?; (2) Did you base your opinion on general assumptions about patients with the same condition?; (3) Did you base your opinion on an individualized inquiry into this patient’s present ability to perform the functions of his job?  Moreover, what happens if an employer asks the physician those kinds of questions, and the physician misrepresents the extent of his examination?

Unquestionably, Pollard requires employers to proceed cautiously when making employment decisions based upon a physician’s opinion.