Q4 ’22: Shine Bright Like a Diamond

In August, the Department of Labor and EEOC presented “Working Mothers: What to Expect from Your Employer When You’re Expecting.” Along with this event, the DOL created new fact sheets on Birth and Bonding and Job-Protected Leave Under the Family and Medical Leave Act.

Gender dysphoria is not excluded from the broad definition of “disability” under the Americans with Disabilities Act (ADA), a divided panel of the U.S. Court of Appeals for the Fourth Circuit has held. Williams v. Kincaid.

In this case, Williams alleged she was wrongfully incarcerated among the prison’s male population, denied requests for accommodations and medical treatment in relation to gender dysphoria (including hormone therapy she had been receiving for 15 years), searched by male officers, and subjected to misgendering and harassment by prison staff and other inmates.

The Sheriff did not contest that gender dysphoria meets the definition of “disability” under the ADA but sought dismissal of the claim on the grounds that “gender identity disorders not resulting from physical impairments” are specifically excluded by the ADA.

The Fourth Circuit held that gender dysphoria is not a “gender identity disorder,” as that term is used in the ADA. The court explained that when the ADA was enacted in 1990, the term “gender identity” focused on transgender status only and did not include gender dysphoria, which causes “clinically significant distress” and other disabling symptoms. According to the court, the “gender identity disorder” language in the ADA was based on outdated guidance that treated being transgender as a “disorder” in and of itself, whereas modern medicine recognizes that some, but not all, individuals who are transgender will experience gender dysphoria.

The court also held that Williams’ claim did not fit the ADA exclusion because she sufficiently pled her gender dysphoria required hormone therapy, a physical treatment she received for 15 years, and that she suffered physical distress during her incarceration when it was not provided. The court reached these decisions in part based on the 2008 amendments to the ADA and case law that direct courts to broadly construe coverage under the ADA and to construe the ADA’s exclusions narrowly. Ultimately, the court concluded that Congress did not intend to exclude transgender people who suffer from gender dysphoria from the protections of the ADA.

While the Fourth Circuit is the first federal appellate court to consider this issue, the topic has been hotly contested in multiple district courts across the country with mixed results.

The Williams decision is controlling in the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia. However, employers across the country should take note of the decision and understand that the reasoning could be adopted in their jurisdictions.

As always, employers should be deliberate and careful to ensure that transgender and gender non-binary staff are treated in a respectful manner and that situations that may lead to harassment and discrimination are avoided. Employers should understand when a gender transition may be necessary and consider how to work with employees to create a successful plan.

Let’s revisit one of the few employer friendly aspects of FMLA. If an employee needs intermittent or  reduced schedule leave that is foreseeable based on planned medical treatment, for themselves or a covered family member, due to a serious health condition, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced schedule leave required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position.

While most requests for intermittent leave are unpredictable in nature, employers should be aware, when those leave events are known, there are options to transfer an employee.

And, while not an FMLA FAQ, shown here at left is a typical FAQ from my 12-year-old daughter, which delayed the completion of this newsletterfor roughly 30 minutes. I don’t recommend phones.

For those of you who don’t know me, I live in Omaha, NE, so this case caught my interest. I can also tell you that our family is a big proponent of public transportation and we regularly take Omaha city buses. We may or may not bring cocktails on those bus rides, but that’s not important. However, I was disappointed to read about a former employee’s experience with the company.

John Gruttemeyer claimed his former employer, the Transit Authority of the City of Omaha (Metro), discriminated against him based on his disability when they terminated him in 2016. A jury found in Gruttemeyer’s favor under the Americans with Disabilities Act (ADA) and awarded damages.

A little backstory: Gruttemeyer began working for Metro in 2011 as a full-time bus operator and transferred to a position as a bus fueler and washer in May 2015. He was terminated in July 2016. Gruttemeyer subsequently filed suit alleging that Metro terminated his employment because of his disability – bipolar disorder, anxiety disorder, and depression.

Let’s talk about Metro’s reason for termination, the infamous violations of policy. First, during an incident in February 2016, Gruttemeyer and another employee’s contentious relationship culminated in a heated argument. According to the other employee, Gruttemeyer physically threatened him; Gruttemeyer said they only exchanged words and video footage of the incident confirmed no physical contact. Gruttemeyer was suspended without pay for 106 days, during which time no one contacted him for a statement about the incident. When he refused to sign a “last chance agreement,” which would have allowed him to return to work with certain conditions and penalties, he was terminated. Metro asserts Gruttemeyer’s participation in the incident with another employee was a policy violation and that he was also dishonest at his pretermination hearing regarding the altercation – another violation of policy.

However, Gruttemeyer presented evidence that other Metro employees without disabilities engaged in threatening behavior toward co-workers that also violated Metro policies, but they were not terminated. Additionally, the jury heard evidence that a Metro bus driver and president of the Union spread rumors on the job about Gruttemeyer’s mental health, calling him “nuts,” “crazy,” and “unstable.”

As a result, the jury returned a verdict in Gruttemeyer’s favor on his disability discrimination claim. The jury awarded damages of $114,540 in lost wages and benefits and $25,000 in other damages. The EE’s attorneys were awarded $103k in damages for a total payout of $242,540.

What’s the lesson? Glad you asked. Under the ADA, employers may not “discriminate against a qualified individual on the basis of disability.” And unfortunately, in this case, the evidence supports that Gruttemeyer’s disability was a motivating factor in Metro terminating him.

A violation of a company policy is a legitimate, non-discriminatory rationale for terminating an employee. However, the court determined there was evidence that Metro treated the EE differently than co-workers who had committed similar acts but had no record of disability.

Employers do not need to lower performance or behavioral standards as an accommodation and violations to those policies should be addressed, whether the employee is disabled or not. But, if you only address violations made by disabled employees, you are likely to find yourself in the same situation

This case involves an employee who was terminated after missing three consecutive shifts without calling in. Seems pretty straightforward, right? Spoiler alert: No.

Under the Family and Medical Leave Act, an employer can insist that employees comply with the company’s “usual and customary” absentee notice procedures. Often those call-out procedures are part of written leave and attendance policies. But if managers don’t require EEs to follow those procedures, the employer will likely lose their ability to enforce those rules.

This company had written attendance and leave policies. Additionally, the policies stipulated that employees notify their group leader via a call-in line at least 30 minutes before their shift begins if they would be late or absent. If an employee missed three consecutive shifts without calling in, the employer would consider the employee to have abandoned his job and would terminate.

However, the plaintiff-employee claimed that through his dealings with the employer, the company’s “usual and customary” notice procedures for leaves of absence expanded beyond its written policy. Specifically, the company had previously accepted his FMLA absences reported via Facebook Messenger, which is how he reported the absences that lead to his termination.

Unfortunately, HR was out of the loop on the Facebook Messenger communications between the plaintiff and his manager and terminated his employment.

So, naturally, the plaintiff sued for FMLA interference and retaliation.

But did Facebook Messenger become a “usual and customary” call-out method? Earlier this month, the Fourth Circuit Court of Appeals agreed the employee had done enough to comply with the employer’s leave notice requirements even though he didn’t follow the rules on paper.

Employer takeaways – we’ve talked about this before. If you have a call-out policy, it should be written, communicated to employees and managers, and followed to the letter. Those policies should outline exactly how an employee should report an absence – must they speak to a live person, can they leave a voicemail, is text acceptable, what detail should they provide, how far in advance of the shift should the absence be reported, etc.

If your policies prove ineffective or outdated, update your policy accordingly and check in with your managers to ensure they are following the proper protocols as well.

TPG will be sending you another educational webinar on the latest with Paid Leave Oregon as rules continue to be finalized. Watch for it in your inboxes in Q4!