About Us  |  Contact Us

Employee with allegedly disabling ‘gender dysphoria’ advances ADA bias, retaliation claims

By Kathleen Kapusta, J.D.

Finding if fairly possible to narrowly interpret the term “gender identity disorders” in Section 12211 of the ADA to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have, a federal district court in Pennsylvania declined to dismiss the ADA disability discrimination claim of an employee who was diagnosed with Gender Dysphoria. Her ADA retaliation claim also survived dismissal (Blatt v. Cabela’s Retail, Inc., May 18, 2017, Leeson, J., Jr.).

According to her compliant, the employee was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder,” which substantially limited one or more of her major life activities, including interacting with others, reproducing, and social and occupational functioning. Shortly after she was hired, she alleged, her employer began to discriminate against her on the basis of her sex and disability. She also claimed it retaliated against her for opposing this discrimination and terminated her on the basis of her sex and disability. She sued, claiming violations of Title VII and the ADA and her employer moved to dismiss her ADA discrimination and retaliation claims.

Gender identify disorders excluded. The stated purpose of the ADA is to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” explained the court, noting that in pursuit of this purpose, Congress, in Section 12102(1)(A) defined the scope of the statute’s coverage by means of a flexible and broad definition of “disability,” namely, “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” Section 12211, however, excludes from coverage approximately one dozen conditions, including gender identity disorders.

Constitutional avoidance cannon. While the employer contended that Section 12211’s reference to gender identity disorders excludes the employee’s condition from the ADA’s scope, she argued that this would violate her equal protection rights. In response, the court cited the constitutional-avoidance canon, which prescribes that “[w]hen the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that [the court] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Therefore, said the court, if there is a “fairly possible” interpretation of Section 12211 that would permit it to avoid the constitutional question raised by the employee, it must adopt that interpretation.

Two distinct categories. Finding that there was indeed such an interpretation, the court observed that the text of Section 12211 can be read as falling into two distinct categories: non-disabling conditions that concern sexual orientation or identity, and disabling conditions that are associated with harmful or illegal conduct. If, as the employer asserted, the term gender identity disorders is understood to encompass disabling conditions like gender dysphoria, then it would occupy an anomalous place in the statute, said the court, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct. But a narrower interpretation of the term would resolve this anomaly as the term gender identity disorders would belong to the first category (non-disabling conditions that concern sexual orientation or identity).

This interpretation, the court pointed out, would also comport with the Third Circuit’s mandate that the ADA, as “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society . . . must be broadly construed to effectuate its purposes.” Thus, any exceptions to the ADA, like those listed in Section 12211, should be read narrowly to permit the statute to achieve a broad reach.

Not excluded. In view of these considerations, the court found it fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to 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 of interacting with others, reproducing, and social and occupational functioning. Finding the employee’s condition was not excluded by Section 12211 of the ADA, the court denied the employer’s motion to dismiss on this basis.

Retaliation claim. As to the employee’s retaliation claim, the employer argued that she alleged conduct that was discriminatory based on her sex, not on any disability. Disagreeing, the court noted she alleged she continually reported to her superior that she was subject to degrading and discriminatory comments on the basis of her disability, that she requested a female nametag and uniform and use of the female restroom as accommodations for her disability, and that as a result of requesting these accommodations she was subjected to a “pattern of antagonism” prior to her termination. The employee, said the court, plausibly alleged that she engaged in protected activity by reporting discrimination and requesting accommodations for her disability. She also plausibly alleged she was subjected to a “pattern of antagonism” as a result of this activity, including the purported intentional and repeated refusal to provide her with a correct name tag. This was enough to permit the case to proceed to discovery.