Tuesday, July 28, 2015

DOJ Tries to Avoid Equal Protection Ruling on ADA Exception for Gender Identity Disorders

    The US Department of Justice (DOJ) and the EEOC read Title VII’s prohibition on sex discrimination to cover employment discrimination based on gender identity, including transgender status.  Now, DOJ’s Civil Division is trying to use its reading of Title VII to avoid a ruling in an Equal Protection Clause challenge to the part of the Americans with Disabilities Act (ADA) that excludes “transsexualism” and “gender identity disorders not resulting from physical impairments” from the statutory term “disability.”  42 U.S.C. § 12111(b)(1). 

            In Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), the plaintiff asserts Title VII and ADA claims against her former employer (Cabela).  Here’s a simplified version of the alleged facts: The plaintiff alleged that in 2005, she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder, a medical condition in which a person’s gender identity does not match his or her anatomical sex at birth” and that falls within the general definition of “disability” under the ADA.  First Am. Compl. ¶ 10.  Thereafter, the plaintiff “changed her name” from James to Kate Lynn and changed her physical appearance to conform to her female gender identity.  Id. ¶ 11.  But at her job, her employer allegedly refused her request for a “Kate Lynn” name tag, id. ¶ 16, and, because of that request, forced her to wear a “James” nametag and use only the men’s restroom until her “her name and gender marker were legally changed.” Id. ¶¶ 18-19.  Thereafter, plaintiff alleged that she suffered insults, lost promotions, and received disfavored shifts in part to keep her away from customers.  When plaintiff finally changed her name legally, she got her “Kate Lynn” nametag, albeit only after repeated complaining, but was only permitted to use the unisex “family” bathroom located in front of the defendant’s store.  Kate Lynn was later fired for an allegedly pretextual reason.

            In a partial motion to dismiss, defendant-employer Cabela argued that the ADA claims must be dismissed, mostly because Congress excluded the plaintiff’s alleged disability-- Gender Dysphoria – from ADA protection. 42 U.S.C. § 12111(b)(1).  In response, Kate Lynn’s lawyers read the ADA exceptions for gender identity disorder and transsexualism (the “GID exclusion”) as equal to “exclusions for transgender people,” thereby creating “a transgender classification. The fact that not all transgender people have a GID diagnosis does not affect the conclusion that all people excluded by the ADA's GID exclusion are transgender.”  In turn, they’ve asked the court to declare the ADA’s GID exclusion to violate the Equal Protection Clause (as read into the Fifth Amendment, Bolling v. Shape, 347 U.S. 497 (1954)), largely because (1) laws with transgender classifications deserve heightened scrutiny because transgender people are “a historically and politically marginalized class of people based on an immutable characteristic, irrelevant to their ability to contribute to society”; and (2) the Senate proponents of the GID exclusion—including former North Carolina Senator Jesse Helms—were really motivated by their moral disapproval of transgender people, and that doesn’t count as a sufficient government interest.

            Thus far, nobody seems to want to try and argue that the ADA’s GID exclusion satisfies the Equal Protection Clause.  In its reply brief, dated Feb. 17, 2015, defendant-employer Cabela’s lawyers wrote: “Cabela’s takes no position regarding the constitutionality of the ADA and defers to the United States Attorney General’s position regarding the constitutionality of the federal statute.”  They then pressed their motion to dismiss in part by assuming the GID exclusion’s constitutionality. 

    In turn, in a statement, filed pursuant to 28 U.S.C. § 517, on July 21, 2015, the DOJ has asked the court to try to avoid the issue by deciding the plaintiff’s Title VII claims first:

[T]he [alleged] facts giving rise to Plaintiff’s Title VII and ADA claims substantially overlap. Moreover, the relief Plaintiff seeks under Title VII and the ADA is identical.  Thus, the outcome of Plaintiff’s Title VII claims could render superfluous her ADA claims and, therefore, would obviate the need to resolve the constitutional challenge to the GID Exclusion. That approach is particularly appropriate given that discrimination because of gender identity, including transgender status, constitutes sex discrimination prohibited by Title VII.

Statement of Interest of the Unites States at 2 (citations and footnote omitted).  In support of that last sentence, DOJ cited, among other things, its own reading to that effect. 

    This is hardly the first time that DOJ's Civil Division has tried to get a court to avoid a constitutional ruling on a federal statutory provision—after all, absent exceptional circumstances, its general charge is to defend federal statutes against constitutional attack.  On the other hand, the DOJ’s reasoning is a little odd here.  The general directive to avoid deciding constitutional questions usually applies as a canon of statutory construction, not as a directive to judges as to when and how they decided claims or defenses that entail some issue of constitutional law.  Does this reasoning mean that, in a lawsuit asserting multiple claims for the same relief, courts generally should avoid deciding section 1983 claims against employers (that entail constitutional questions) until after they figure out whether the non-constitutional damages claims have merit? Besides, this seems to lead to some serious inefficiency.  In cases with multiple and independent legal grounds for the same relief, should district judges invariably avoid so identifying such grounds if they are constitutional?  Moreover, suppose the defendant-employer here moves for summary judgment on the Title VII claims and loses the motion. If there is a non-zero probability that the ADA’s GID exclusion is constitutional and suffices as a reason to dismiss the plaintiff’s ADA claims, why not decide that first, as opposing to going to trial and making the parties present evidence on, and making a jury decide, the material issues of fact for both the ADA and Title VII claims?  Puzzling.


--Sachin Pandya


Disability, Employment Discrimination | Permalink


One other notable point on DOJ’s “odd” reasoning:

DOJ did not follow the constitutional avoidance argument put forward in an amicus brief filed by six state and national transgender rights organizations (2015 WL 1322781): the ADA excludes "transsexualism" and "Gender Identity Disorders"—not "Gender Dysphoria," which is a brand new diagnosis that more accurately reflects the distress that some transgender people experience.

And a few silver linings:

DOJ strongly reiterated its 2014 position that transgender status constitutes sex discrimination under Title VII, and it also reserved the right to weigh in on the constitutionality of the transgender exclusion at a future date. Given the time it took for DOJ to reach its decision in this case (DOJ filed two extension requests, which totaled over five months), DOJ must have thought long and hard about its decision. Hopefully, DOJ will do the right thing in this case or in those to come, and will find that rank animus against transgender people has no place under the law.

Posted by: Kevin Barry | Jul 29, 2015 6:37:59 AM

To learn more about the constitutional arguments for striking the GID/transsexualism exclusions from the ADA (and the Rehabilitation Act) and the alternative arguments for reaching the same result without having to reach to constitutional arguments, see:

1. My extensive discussion of the issues in Chapter 16 (The Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973) in Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide (http://www.bna.com/bnabooks/giso).

2. The briefs filed by plaintiff Kate Lynn Blatt and Kevin Barry (on behalf of amici) at http://www.glad.org/work/cases/blatt-v-cabelas-retail-inc.

I think it is particularly noteworthy that Cabela’s—represented by L&E boutique Fisher & Phillips—decided not to oppose the constitutional arguments. This approach was in sharp contrast to the decision of Saks Fifth Avenue, which was represented by another L&E boutique, to press forward with the arguments that Title VII did not protect transgender employees. That position prompted significant adverse media coverage (e.g., http://time.com/3682701/saks-transgender-lawsuit-texas/) and both the EEOC and DOJ filed briefs in support of plaintiff Leyth Jamal, who was ably represented by Jill Weiss. The case quickly settled after the filings by EEOC and DOJ.

I’ve seen a similar trend in the e-alerts from the major law firms, which, after the EEOC’s Macy (transgender/gender identity = sex) and Foxx (sexual orientation = sex) decisions, have counseled their clients that it is time to amend workplace polices to expressly bar discrimination based on gender identity and sexual orientation, to allow gender-affirmed employees to use the sex-segregated facilities that correspond to their gender identity, and to provide workplace training about these issues. Sadly, some employers and educational institutions continue to swim against the trend, as highlighted by the NYT editorial board this past Monday (http://www.nytimes.com/2015/07/27/opinion/for-transgender-americans-legal-battles-over-restrooms.html).

While we celebrate the 25th anniversary of the ADA this month, we need to remember that the lead proponents of the ADA—Senators Harkin and Kennedy—bowed to the pressure exerted by Senators Armstrong and Helms to exclude transgender people from the protections of the ADA. It is a stain on the fabric of the ADA that should be corrected by Congress or the courts.

On July 28, the court in Blatt directed the parties to “file briefs in response to the United States Statement of Interest on or before August 14, 2015. The briefs should discuss: whether the constitutional avoidance doctrine is applicable or not applicable; and if the constitutional avoidance doctrine is applicable, what the procedure should be for further pre-trial and trial proceedings in this case.”

It will be interesting to see what the court does.

Posted by: Christine Michelle Duffy | Jul 30, 2015 7:47:04 AM

It's really hard to understand why employers wouldn't be a bit more understanding about Kate Lynn's issues at the workplace. If employers are not willing to take the time to create a system that addresses the employees issues at the workplace than they can expect to have some push back. Here is a good article I found about the topic.http://www.queensemploymentattorney.com/articles/law-banning-gay-and-transgendered-employee-discrimination-passes-senate/

Posted by: Thomas Nelson Parker | Aug 3, 2015 9:18:19 AM

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