Labor & Employment Law Daily Northrup engineer’s gender dysphoria not protected by the ADA; no physical impairment
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Friday, October 25, 2019

Northrup engineer’s gender dysphoria not protected by the ADA; no physical impairment

By Wayne D. Garris Jr., J.D.

The employee had already started hormone replacement therapy when he began working at Northrup Grumman, but a new manager refused to deploy him and wanted to transfer the employee to a new department.

Granting Northrup Grumman’s motion to dismiss a former Field Engineer’s Title VII and ADA claims, a federal district court in Alabama held that the employee’s gender dysphoria is not protected by the ADA. While the ADA does not explicitly list gender dysphoria in its exceptions, the statute excludes “gender identity disorders,” which is synonymous with gender dysphoria. The employee’s ADA claim may have survived the motion to dismiss if he could show that his gender dysphoria was the result of a physical impairment, but the employee made no such allegation (Doe v. Northrup Grumman Systems Corporation, October 22, 2019, Smith, L.).

Gender dysphoria. In 2014, the employee was diagnosed with gender dysphoria, a condition in which an individual experiences incongruence between the gender they have been assigned at birth and their expressed, or experienced, gender. In 2016, while on active duty with the U.S. Army, the employee began hormone replacement therapy.

The employee began working for Northrup Grumman in 2018 as a Field Engineer. Shortly after he started working, the employee became aware that some of his colleagues “were beginning to notice changes in his appearance and demeanor due to his hormone replacement therapy.” The employee met with his division manager and human resources representatives, who assured him that his transition would not “pose any impediment to his job duties” or “be considered in employment decisions.”

New manager. Several months later, a new division manager was hired and became the employee’s supervisor. The employee discussed his transition with the new manager who responded that even if the employee met all the requirements necessary to be deployed, he would not allow the employee to deploy outside of the United States. The manager stated that something might happen to the employee because of his, “rapidly-developing female characteristics, his sexual preference, and/or his transitioning.”

Layoff. After the meeting, the manager continued to deny the employee’s deployment requests and sought to transfer the employee to a different department. The employee complained to HR, however several weeks later HR informed him that he would be laid off because deployment was a requirement of his position. The employee filed a charge with the EEOC, and later filed suit, alleging violations of Title VII and the ADA based on certain female characteristics he had developed because of his hormone replacement therapy and his diagnosis of gender dysphoria. The employer moved to dismiss.

Title VII claim. The employee conceded that his Title VII claim alleged discrimination based on perceived female characteristics, not hostile work environment, so the court granted the employer’s motion to strike terminology in the employee’s Title VII claim normally associated with a hostile work environment claim. The court declined to dismiss the Title VII claim, however, stating that even though the discrimination allegations were “bare-bones” without the hostile work environment language, they were barely enough to satisfy the Twombly-Iqbal pleading standards.

Is gender dysphoria a disability? Turning to the ADA claim, the employer argued that gender identity disorders are explicitly excluded from the definition of “disability” under the ADA, so the employee’s claim must be dismissed. The employee contended that gender dysphoria is not specifically listed in the relevant section of the statute. The court explained that in 2013, the American Psychiatric Association replaced the term “gender identity disorders,” with the term “gender dysphoria” in the DSM-5; thus, the terms “gender identity disorder” and “gender dysphoria” were synonymous, and the employee’s gender dysphoria was not covered by the ADA.

Physical impairment. The statute does protect individuals with gender dysphoria if the condition is the result of a physical impairment, the employee noted, and the employer failed to dispute his “clear allegations” that his condition is a medical one that does result from a physical impairment. The problem with the employee’s argument, the court stated, was that he never made any allegation that his gender dysphoria resulted from a physical impairment, so his claim could not rest on the existence of a physical impairment.

Constitutional argument. Nor could the employee show that dismissing his claim would be a violation of his right to equal protection under the U.S. Constitution. The court dismissed this argument as conclusory and also noted that the employee failed to meet his burden to “disprove every conceivable basis which might support the classification, whether or not the basis has a foundation in the record.”

The granted the employer’s motion dismiss holding that a condition of “gender dysphoria” that does not result from a physical impairment is expressly excluded from the definition of disabilities covered by the Americans with Disabilities Act.

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