Transgender Employees may be Protected under the Americans with Disabilities Act

The United States District Court for the Eastern District of Pennsylvania has ruled that a transgender employee may pursue a claim of discrimination under the Americans with Disabilities Act (“ADA”) against her former employer. This is the first time a federal court has determined that the ADA’s protections may apply to transgender employees.

Most courts that have considered whether or not to apply ADA protections to transgender employees looked to the plain language of the statute and refused to recognize a claim for relief under the ADA. The ADA expressly excludes from its coverage “transvestism, transsexualism, [and] gender identity disorders not resulting from physical impairments.” The court in Blatt v. Cabela’s Retail, Inc., however, looked closely at the allegations in the transgender employees’ complaint, noting that the employee was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder.” The employee alleged that her disorder substantially limited one or more of her life activities, including her ability to interact with others, reproducing, and social functioning. In a bit of linguistic gymnastics, the court reasoned that the exclusion from ADA coverage of “gender identity disorder” is narrow, and therefore should not exclude from ADA coverage, “disabling conditions that persons who identify with a different gender may have – such as [the employee’s] gender dysphoria, which substantially limits her major life activities” (emphasis added). The court thus distinguished between merely identifying with a specific gender (not covered under the ADA) and the disabling conditions that may result from such gender identification.

Practical point for employers: in many instances, accommodating LGBTQ employees (under the ADA) likely should not pose an undue hardship on. For example, the plaintiff in the Cabela’s case requested, among other things, to wear a male nametag and uniform.

LGBT rights continue to progress at a swift pace. As we wrote recently, the Seventh Circuit Court of Appeals determined that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination in the workplace on the basis of sexual orientation. This was the first time a federal appeals court reached such a conclusion. Title VII of the Civil Rights Act of 1964 forbids workplace discrimination on the basis of, among other things, “sex,” but it does not explicitly mention “sexual orientation,” and the United States Supreme Court has never ruled on the issue. Despite this, the Seventh Circuit determined that sexual orientation discrimination is prohibited by Title VII. 

LGBT rights in the workplace is a significant and dynamic issue for employers and the law varies from state to state, jurisdiction to jurisdiction. In addition to the  courts, employers need to be concerned about the views of Equal Employment Opportunity Commission and the Occupational Safety and Health Administration (among other agencies), as they continue to push for more workplace protections for LGBT workers. Please contact your Hahn Loeser & Parks Labor and Employment attorneys for more information on these continuing developments.