Requests to Accommodate Gender Dysphoria May Follow Fourth Circuit Ruling
As HR professionals already recognize, the American with Disabilities Act (ADA) requires employers to work collaboratively with employees to provide workplace accommodations for disabilities. But that presses a question: What counts as a disability? In some cases, the ADA offers specific guidance as to what isn’t a disability — including a provision stating that “gender identity disorders not resulting from physical impairments” are not disabilities under the ADA.
But based on an Aug. 16, 2022, decision from the Fourth Circuit Court of Appeals, employers should exercise caution when employees raise the issue of gender identity. In that decision—called Williams v. Kincaid — the Court ruled that gender dysphoria may be covered by the ADA, even if “gender identify disorders” may not be.
What makes the two different? As the Fourth Circuit explained, gender dysphoria may be marked by feelings of “discomfort and distress” associated with an incongruence between an employee’s gender identity and their gender at birth. And while Williams v. Kincaid isn’t an employment case, it should grab employers’ attention, nonetheless. If an employee flags an issue that sounds like it could fit that definition, the safest approach is to provide an appropriate accommodation.
The Florida Legislature May Think Your Workplace Diversity Training is “Too Woke”— but that’s Okay
For a short stretch earlier this year, employers in Florida faced a new headache: Would their trainings on workplace bias violate state law for being “too woke?” That worry sprung from a law passed earlier this year by the Florida legislature. The law, which its proponents called the “Stop Woke Act,” prohibited mandatory workplace trainings on a set of concepts related to discrimination.
Even casual observers spotted an obvious problem with that Florida law: It’s an attempt by the government to limit speech based on its content. And as a Florida federal district court held last week, that means the law runs afoul of the First Amendment. The court entered an injunction barring Florida from enforcing the law while the legal challenge moves forward. The takeaway for employers? Keep providing appropriate training to your employees — even if that makes you more “woke” than the Florida legislature.
Tenth Circuit Ruling Shows How Managers Who Bungle Discrimination Complaints Put Their Employers at Risk
Doctors who abide by the Hippocratic Oath start by promising, “First, do no harm.” Managers would do well to follow that directive. A recent Tenth Circuit case called Ford v. Jackson National Life Insurance Company shows why. La’Tonya Ford spent four unhappy years at Jackson National where, according to Ford’s account, her coworkers were crude, misogynistic and racist. Ford eventually complained to management. After that complaint, Ford applied for a new, better position—which she’d done unsuccessfully several times in the past. With that application in hand, a Jackson National vice president emailed the company’s head of HR to insist that Ford would “attempt to leverage that position into an opportunity to work against the company’s interest by furthering her complaint.” The HR head dashed an email back, warning that the vice president “should not express in e-mails sentiments like the one [he] expressed.”
It was too late, of course — that email featured prominently in Ford’s lawsuit against the company. Even though Ford lost on her discrimination claim, the Tenth Circuit allowed her retaliation claim to go forward, calling that email a “key piece of evidence.” The lesson for employers is clear: when a manager lashes out at an employee for complaining about discrimination, the situation goes from bad to worse. And, if an employer can’t trust its management team to deal with complaints appropriately, it needs to retain counsel who can.
Michael Judd is a shareholder in Parsons Behle & Latimer’s employment and labor department in the Salt Lake City office. He guides clients through complex litigation in varied industries, including disputes related to employee mobility, antitrust and trade secrets. To contact Michael, call 801.532.1234 or send an email to mjudd@parsonsbehle.com.
