The Oklahoman

DAILY Q&A WITH JACOB CRAWFORD

Protection­s remain unclear for transgende­r employees

- PAULA BURKES, BUSINESS WRITER

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Indeed, the term “gender identity disorder” has become outdated in the medical profession.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.

 ??  ?? Jacob Crawford is an attorney with McAfee & Taft law firm.
Jacob Crawford is an attorney with McAfee & Taft law firm.

Newspapers in English

Newspapers from United States