On May 18, 2017, in Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822 (E.D. Pa. 2017), Judge Leeson of the District Court for the Eastern District of Pennsylvania ruled that employees who are terminated from employment because they have gender identity disorder, also known as gender dysphoria, may be protected under the Americans with Disabilities Act (“ADA”).

Most recently, employees have tried, with limited success, to sue for gender identity discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects against, among other things, discrimination on the basis of sex. While some courts have equated discrimination on the basis of gender identity or transgender issues with discrimination on the basis of sex, it is still very much an open question.

In Blatt, the plaintiff made a claim for sex discrimination, but then also claimed that her employer violated the ADA because it failed to accommodate her disability, and that it retaliated against her under the ADA because she opposed this discrimination. The plaintiff claimed that her disability was gender identity disorder, and that it substantially limited her major life activities, including interacting with others, reproducing, and social and occupational functioning.

The employer moved to dismiss the ADA claims, contending that the statutory language of the ADA necessarily precluded the plaintiff’s ADA claims. The ADA specifically excludes from its coverage “gender identity disorders not resulting from physical impairments.” 42 U.S.C. § 12211. The plaintiff argued, however, that such an interpretation would violate her equal protection rights. The court held that, if possible, it needed to interpret statutes in a manner that did not raise an equal protection issue. Accordingly, the court held that the ADA preclusion of gender identity disorders did not include disorders where there are allegations that the disorder substantially limited one or more major life activities. The court accordingly refused to dismiss the claims.

What Does This Mean For You? Employers should be careful when making employment decisions involving individuals with gender identity disorders. This case, which appears to be the first of its kind to use the ADA as a basis for discrimination by an employee with a gender identity disorder, provides a new avenue for such individuals to attempt to recover damages from employers. Please note that such a claim may be even easier to bring under the Pennsylvania Human Relations Act, which prohibits discrimination on the basis of disability, but which, unlike the ADA, does not contain any exclusion for gender identity disorder. As with any employment decision, employers should ensure that such decisions are made for legitimate business reasons rather than on the basis of any potentially protected status the employee may have.

If you have any questions or concerns about this update, or any other employment or labor law questions, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237.

**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist**