A New Door for Transgendered Employees Has Opened under the ADA

 

Transgendered Employees Entitled to ADA Protection?

 

The employment landscape has exploded recently regarding legal protections for LGBT employees. Most of the controversy involves whether or not sexual orientation (as well as gender identity and expression) are protected under Title VII of the Civil Rights Act. Recently the Court of Appeals for the Seventh Circuit, which includes Illinois, ruled, for the first time, that sexual orientation was a protected form of sex discrimination under federal law. Undoubtedly this issue will be decided by the U.S. Supreme Court as there is now a split in circuits throughout the country. While courts applying Tile VII have held that sex discrimination prohibits anti-transgender discrimination in the workplace, a new and creative wrinkle has opened the door for transgendered employees with gender dysphoria as possibly disabled and thus covered against discrimination under the Americans with Disabilities Act (“ADA”).

The ADA is a remedial statute designed to eliminate discrimination against the disabled. However, the ADA explicitly exempts from its definition of disability “transvestitism, transsexualism and gender identity disorders not resulting from physical impairments”. However, in a novel case recently decided, a court has ruled that a transgendered employee with gender dysphoria may qualify as a disabled employee entitled to protection from discrimination under the ADA.

According to the American Psychiatric Association, gender dysphoria involves a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify. People with gender dysphoria may be very uncomfortable with the gender they were assigned, sometimes described as being uncomfortable with their body (particularly developments during puberty) or being uncomfortable with the expected roles of their assigned gender. The gender conflict affects people in different ways. It can change the way a person wants to express their gender and can influence behavior, dress and self-image. Some people may cross-dress, some may want to socially transition, others may want to medically transition with sex-change surgery and/or hormone treatment. Socially transitioning primarily involves transitioning into the affirmed gender’s pronouns and bathrooms.

The fact that a person may be transgendered does not automatically confer disabled status. However, where there is a diagnosis of gender dysphoria involved, it may open the door to ADA protection. Gender dysphoria can substantially limit the major life activities of interacting with others, reproducing and social and occupational functioning.

The takeaway is to expect transgendered rights to continue to expand. Employees can expect statutes like the ADA to be interpreted more broadly to afford a wider range of protections. Employers should be prepared to provide reasonable accommodations to transgendered employees with gender dysphoria. This may include allowing the employee to dress in clothing that corresponds to their gender identity. Also, employers and employees need to be aware that recently the Occupational Safety and Health Administration (“OSHA”) has issued guideance to employers regarding restroom access for transgendered employees, concluding that transgendered employees should have access to restrooms that correspond to their gender identity.

The failure to treat a transgendered employee with respect and dignity in the workplace just became a lot more dangerous for employers. For transgendered employees, there may be a new light at the end of the tunnel to protect their rights.

With over 30 years’ experience in advising employers and employees on cutting edge employment law issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever-changing employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website at www.boznoslawoffice.com.

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