Tenth Circuit reinstates some claims by a worker but affirms dismissal of others

In a case involving rather significant allegations of misconduct, the Tenth Circuit parsed through the evidence to hold, on summary judgment, that some of the worker’s claims were properly dismissed but other should have been allowed to proceed.

On her claim of discrimination, her case included a claim that an officer of the company said he felt she was “building a case” against the company and was “more trouble than she’s worth,” that he called her and another African-American female employee “Black b*s from Atlanta” and “resident street walkers.” However, the Tenth Circuit rejected the claim because it found no evidence that the officer was a decisionmaker or that he had any input in the adverse employment decision affecting her.

On her claim of retaliation, though, the Court noted that the same officer had allegedly laughed and said, “Let her try,” when the possibility of her re-applying for promotion in the future was discussed.

The court analyzed a number of other claims and multiple other allegations of specific evidence, including an incident involving rather graphic allegations of sexual harassment at a party attended by plaintiff and her co-workers, which the Court held was not sufficient to support a claim because the party occurred well before the time period for filing a charge of discrimination (300 days). But, the Court noted she claimed that she’d been asked multiple questions at work about her breasts, been subjected to “sexual banter,” on a near “daily basis,” much of which was corroborated by other female workers. The Court held this was sufficient to support claims of hostile work environment and constructive discharge.

The case is Ford v. Jackson National Life Ins. Co.

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Honored to be selected for inclusion in Best Lawyers in America

Honored to be selected again for inclusion in The Best Lawyers in America for Employment Law – Management.

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Fourth Circuit holds that gender dysphoria can sometimes constitute a disability protected by the ADA

In Williams v. Kincaid, the Fourth Circuit held that, while being transgendered itself is not a disability protected by the ADA (Americans with Disabilities Act), gender dysphoria can sometimes be. The Fourth Circuit summarized gender dysphoria as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.” The court noted, “People suffering from gender dysphoria often benefit from medical treatment, including hormone therapy,” and observed that “gender dysphoria” is “a disability suffered by many (but certainly not all) transgender people” (parenthetical in original).

Accordingly the Fourth Circuit cautioned that not all transgendered people suffer a “disability” protected by the ADA, and neither do all transgendered individuals who suffer from gender dysphoria. Rather, the ADA protects only those individuals whose gender dysphoria is so severe as to render them “disabled” within the meaning of the ADA. The court found significant that this plaintiff had required daily hormone treatment for 15 years due to gender dysphoria. Based on the plaintiff’s allegations to that effect, the court held this plaintiff should be entitled to try to prove that her gender dysphoria constituted a “disability” as defined by the ADA, in other words, a physical impairment that substantially limits one or more of her major life activities . (Note: The ADA also protects mental impairments that are so limiting, but this case involved allegations that the plaintiff’s gender dysphoria was a physical impairment; there was no issue raised regarding mental impairment.)

The dissent noted that the ADA, when passed, expressly excluded from protected disabilities “gender identity disorders,” but the majority held that whatever the phrase “gender identity disorders” meant “at the time of (the ADA’s) enactment,” it did not include gender dysphoria and, even if it did, the case was at too premature a stage to determine that this particular plaintiff’s gender dysphoria was a “gender identity disorder.”

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Seventh Circuit Affirms Employer’s Right To Provide Workers Comp Light Duty But Refuse To Provide Light Duty To Pregnant Workers

In EEOC v. Wal-Mart Stores East, L.P., the Seventh Circuit held that an employer need not offer light duty to pregnant workers, even though it offers the same to employees who are on workers compensation, so long as the company does not also offer light duty to those who are ill or injured off-the-job. In so doing, the Seventh Circuit looked to the Supreme Court’s 2015 decision in Young v. UPS, that held, without further explanation, that pregnant workers must be offered light duty if it is offered to other employees with similar restrictions. The Seventh Circuit distinguished a 2016 Second Circuit case, Legg v. Ulster County, that had required light duty for pregnant workers even though it was otherwise reserved for workers comp cases, because, there, the Seventh Circuit held the employer had offered “confused and inconsistent rationales” for its decision to reserve light duty for workers comp cases. The Seventh Circuit didn’t explain why that employer’s rationales were “confused and inconsistent,” whereas, this employer’s were clear and persuasive, except to note that this employer explained that reserving light duty for workers compensation cases helped it to reduce “costs” and “legal exposure,” given the state of Wisconsin’s statutory schemes governing workers compensation claims and the incentives provided therein for light duty.

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