Employment Law Daily Requests for gender transition, anatomical info about employee ‘grossly’ disproportionate
Thursday, January 14, 2016

Requests for gender transition, anatomical info about employee ‘grossly’ disproportionate

By Lorene D. Park, J.D. Finding overbroad an employer’s requests for information and medical records concerning an employee’s gender transition, including surgeries, drug or hormone therapy, and other treatment, a federal district court in Nevada denied its motion to compel in part. The requests were “grossly out of proportion” to what the employer legitimately needed to know to defend against claims that it unlawfully required the employee to prove his male anatomy before letting him use the men’s room and that he was harassed by coworkers and supervisors, causing him emotional distress (Roberts v. Clark County School District, January 11, 2016, Leen, P.). Gender transition. The employee, a school district police officer, was born biologically female and identified as female until late 2009, when he began transitioning to male. He identified himself as male by the beginning of the 2011 school year and claimed that, since then, he has been harassed and humiliated at work. Incidents included inappropriate comments and demands by coworkers and supervisors for information about his gender and genitalia. He was told to use the female restroom and later told to avoid campus restroom facilities. He was also required to produce overly intrusive personal information, and was asked for medical records showing genital surgery even after he provided a new driver’s license and the order for his name change. New workplace policies. In 2012, the employer issued policies directed at transgender persons that seemed to target the employee. One memo prohibited police department employees from using children’s restrooms without authorization from the school principal. The employee was told to go to headquarters to read the memo but knew of no other police department employee who was required to do so. Filing suit, he claimed the employer’s discriminatory actions interfered with his ability to perform his duties and caused him emotional distress. Employer wants medical info. Filing a motion to compel discovery responses, the employer sought documents related to the employee’s diagnosis or treatment for any injury for which he sought compensation. It also requested the identity of every healthcare provider to have treated him since 2009 regarding his gender transition and any emotional distress. Also sought were medical records concerning surgeries and drug or hormone therapy related to gender transition. Because the employee refused to provide written authorizations for medical records, the employer requested a qualified protective order allowing it to subpoena records from providers. Though the employer claimed the information was relevant to when the employee began to transition, when various phases of his gender transition occurred, and the cause and severity of any emotional distress, the employee argued that the employer sought intrusive information exceeding the bounds of what is discoverable. He also maintained that medical records were not relevant because he only alleged garden variety emotional distress. Common sense approach. After a thorough review of the requirements of Rule 26, including the emphasis of 2015 amendments on the need for “reasonable limits” on discovery through common sense, the court largely denied the employer’s motion. It noted that the employer was alleged to have caused emotional distress by refusing to let the employee use the men’s restroom until he provided medical evidence that he was biologically or anatomically male. In its motion to compel, the employer essentially argued that the employee had to provide proof of his genitalia and details of his transgender treatment to prove it caused him emotional distress. The court categorically rejected this position, explaining that the employee did not claim his emotional distress was caused by his transgender status. Instead, his transition pleased him and it was the discriminatory and harassing responses of coworkers and supervisors that allegedly caused him distress. In the court’s view, the employer “simply does not need to know the intimate details of his transgender transition process to defend itself.” Emotional distress. As to the request for the identity of health care providers, the court noted that he claimed he was only seeking Title VII compensatory damages for garden-variety emotional distress caused by the employer’s handling of his gender transition. However, he also identified a particular individual as a therapist and activist for transgender individuals who attended meetings between the parties. The court compelled the employee to clarify that he did not receive treatment for emotional distress and will rely on his own testimony about how the employer’s actions and inactions distressed him. If he planned to rely on the therapist’s or another person’s testimony to support his claim, he had to provide the name of the witness and a summary of expected testimony. The court also found overbroad the district’s request for medical records from all health providers involved with the employee’s transgender transition from 2009 to the present. The district would have a chance to question the employee under oath about his emotional distress claims, including severity, physical manifestations, and other possible causes. It could also ask whether he was treated or sought treatment. But the court would not compel him to produce the requested records based on speculation that they might contain references to his mental state. Likewise, the employer’s request for all documents on any surgeries or hormone therapy he had was “grossly out of proportion” with what it legitimately needed to know to defend itself. Social media. The court also refused to require the employee to identify his personal email addresses and networking websites with account name and address, finding the employer’s request for this information overbroad. However, to avoid a future dispute over a subsequent discovery request, it required counsel for the employee to identify the employee’s social media sites for which he had accounts from 2011 to the present, to review the content, and to produce any content that referred to the lawsuit, to the employer’s response to his gender transition, and to the manner in which he was treated by coworkers, managers, supervisors, and counsel.

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