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Check out this month's issue for news and updates related to Sex & Disability Discrimination; FMLA Retaliation; & Upcoming Events!
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Is Gender Identity Disorder A Disability?
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A court recently addressed this interesting question. Is gender dysphoria or gender identity disorder a disability under the ADA? Here's a clue to the answer; it's two words. It depends. More specifically, the court indicated that it could be. In this case an employee filed suit alleging four counts of discrimination under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Interestingly, the employer did not move to dismiss any of the claims under Title VII but did ask the court to dismiss the claims of discrimination, retaliation and failure to accommodate under the ADA.
In Blatt v. Cabela's Retail, Inc. the US District Court for the Eastern District of Pennsylvania analyzed the Congressional history of the ADA. It considered one section, which excludes from the ADA's protection certain disorders including "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders." The history revealed that Congress discussed and intended to create two distinct categories of exclusion from the ADA's protection: illegal conduct such as compulsive gambling, pedophilia and kleptomania and certain sexual identities that were not disabling conditions, such as homosexuality and bisexuality.
The court then found that it was "fairly possible" to interpret the ADA's term of gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions like Blatt's, which she alleged were substantially limiting her major life activities of interacting with others, reproducing, and social and occupational functioning. As a result, the court denied the employer's motion to dismiss these claims. The case will now proceed; stay tuned!
In the interim, keep in mind that this is an evolving area of employment law. Courts are not all in agreement with one another nor the US EEOC as to what is or is not sex discrimination, let alone when certain conditions might constitute a disability.
If you missed July's Webcast, "ADA in the News" you can access the archived version here for more on this story and other recent cases impacting employment practices. ($25 pp)
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Upcoming Events, Seminars & Presentations
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Thursday, September 28th, "Up in Smoke: Marijuana in the Workplace" presented 3 times during the 29th annual IEHRA conference, Denver, CO.
Friday, September 29th, "Pressure, Pain & Politics: What Keeps HR (and Biz) Pros Up at Night" a Keynote Presentation presented during the 29th annual IEHRA conference, Denver, CO.
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Proof of FMLA Violation:
How Much is Enough?
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Here's the short version of this story. Over a 13-month period an employee receives ten, that's right, ten notices of corrective action, including a probationary period which was extended twice. In that period, the employer also offered "enhanced training." When the employee failed to meet the performance expectations by the end of the second, extended period the employee's supervisor and the Director both recommended to HR that the employee be discharged, which she was. Sounds like a slam dunk win for the employer, eh?
Now, here's the employee's side of the story.
The 13-month period of corrective action started just one month after she made her first request for FMLA leave for anemia and other conditions. On three occasions, thereafter she either took FMLA leave or requested it. Two of those occasions were a result of being hospitalized for her anemic condition. Twelve days after her return to work from her second hospitalization, her supervisor and Director recommended she be fired and she was one week later. Hmmm - that plays a different tune.
So, the question before the 2nd US Circuit Court of Appeals (covering NY, VT, CT) in Woods v. START Treatment & Recovery Centers, Inc. was how much of a factor must the employee's exercise of her FMLA rights be in the employer's decision to discharge her: a little or a lot? Does it have to play only a part of the decision or must it be the reason for the decision to fire a.k.a. but for causation. Put another way, but for the taking of FMLA leave would the employee not have been fired? Unfortunately for employers in this Circuit this Court found that the lower standard should apply to FMLA retaliation claims. The employee-plaintiff need only show that the taking of FMLA leave was a "negative factor" in the employer's decision to fire her.
Take Away? Timing isn't everything but it sure can change perception. So, when thinking about taking adverse employment action ask questions. Has the employee recently engaged in any protected activity (workers' comp, FMLA or pregnancy leave, complained about harassment or a wage and hour issue, etc.)? If so, that does not mean you run away from a proper adverse employment action. It does mean you want to ensure your decision is well documented and defensible.
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any particular matter.
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FiveL Company | info@FiveL.net | www.FiveL.net
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