Protections remain unclear for transgender employees
Q: The Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations to employees with disabilities. More and more, employers are receiving requests for accommodations related to an employee's transgender status. Does the ADA expressly address whether being a transgender person is a disability?
A: The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” The ADA expressly excludes “gender identity disorders not resulting from physical impairments” from the definition of disability. For years, many believed this exclusion settled the issue and concluded that any medical issues associated with being a transgender person are not protected by the ADA. However, many people inside and outside the legal industry have called into question the correctness of such a conclusion.
Indeed, the term “gender identity disorder” has become outdated in the medical profession. In 2013, the American Psychiatric Association removed the term from its Diagnostic and Statistical Manual of Mental Disorders and added “gender dysphoria” — a term not found in the ADA — as the proper diagnosis of a person suffering from significant distress or impairment in social, occupational or other important areas of functioning due to their gender identity. Employers are less likely now to come across an employee diagnosed with a “gender identity disorder.” Accordingly, it is no longer clear as to whether the ADA's express language excludes from the definition of disability all medical conditions related to a person being transgender.
Q: Have any courts held that the ADA protects transgender-related medical conditions?
A: At least one federal court has held that the term “gender identity disorders,” as used in the ADA, refers only to the situation in which a person identifies with a gender other than that assigned to them at birth; it does not refer to gender dysphoria (i.e., suffering from significant distress or impairment due to one's gender identity). In other words, a person is not disabled because they are a transgender person, but they might be disabled for ADA purposes if they are suffering from gender dysphoria. It should be noted that there are other courts that have rejected such a narrow interpretation of “gender identity disorders.” But, the above ruling definitely signals that the law on this issue is far from settled.
Q: If the ADA isn't clear on the issue and courts disagree on the issue, what should employers do when transgender employees request an ADA accommodation?
A: Employers should proceed with caution. The ADA requires an employer to engage in an “interactive process” any time it becomes aware that an employee might have a disability that requires a reasonable accommodation. This is an informal process by which the employer communicates with the employee, the employee's health care provider, and/or the employee's supervisor to determine if the employee has a covered disability and whether a reasonable accommodation exists that will allow the employee to perform their job duties. An employer should not disregard a request for accommodation from a transgender person without proceeding through this interactive process.
A person diagnosed with gender dysphoria also may be diagnosed with anxiety, depression or other conditions that are undoubtedly covered by the ADA. An employer only can discover the true nature of the physical impairment, and thus determine if it is a disability for which a reasonable accommodation is needed, by engaging in the interactive process. As with all human resources issues, this process should be thoroughly and accurately documented as such documentation will be “evidence” of the employer's commitment to the employee and compliance with the law.
PAULA BURKES, BUSINESS WRITER
Published The Oklahoman, January 16, 2019