Tag Archive for: Americans with Disabilities Act

Fourth Circuit Grants Gender Dysphoria Disability Protection under the Americans with Disabilities Act (ADA)

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On August 16, 2022, the U.S. Court of Appeals for the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia) has become the first federal appellate court to find that gender dysphoria is covered by the Americans with Disabilities Act (ADA).[1] The decision came after a transgender woman sued Fairfax County for housing her with men during her time in jail.

The court explained that “being transgender is not a disability,” but “many transgender people experience gender dysphoria.” Distinct from now-obsolete “gender identity disorders”[2] that the ADA excludes, the American Psychiatric Association (APA) defines gender dysphoria as “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.” As the court explained, gender dysphoria “concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender.” Excluding gender dysphoria from ADA protection, the court ruled, “would discriminate against transgender people as a class,” in violation of the Equal Protection Clause of the Fourteenth Amendment.

The ADA requires employers, schools, and other businesses or organizations open to the public to provide reasonable accommodations to support people with disabilities. In the employment context, this decision allows employees experiencing gender dysphoria to request workplace accommodation from their employers. Additionally, those discriminated against for gender dysphoria may bring a claim under the ADA.

This ruling follows an increase in federal district courts’ endorsement of gender dysphoria as a protected disability under federal anti-discrimination law. Even so, the law is constantly evolving in this area, and you should contact an attorney to see how this ruling—or the ADA in general—applies to you. Our experienced employment law attorneys are happy to discuss your case and help you understand your legal rights and options in light of this new ruling.

NOTES:

[1] Williams v. Kincaid, No. 21-2030, 2022 U.S. App. LEXIS 22728 (4th Cir. Aug. 16, 2022).

[2] The APA removed “gender identity disorder” from its Diagnostic and Statistical Manual of Mental Disorders nearly a decade ago.

Is Long Haul COVID-19 a Disability under the Law?

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After dealing with COVID-19 for over two years, many people who have dealt with the novel coronavirus are also dealing with longer term symptoms and they are not going away easily. This is known as “Long Haul COVID-19.” Long Haul COVID-19 is becoming more common and impacting the lives of many people. It causes many problems that medical professionals and scientists are still working to understand.

For example, Long Haul COVID-19 can lead to cognitive difficulties and make it difficult for employees to complete their work responsibilities in the same manner they could before becoming infected.

This raises the question: is Long Haul COVID-19 considered an “actual” disability under the Americans with Disabilities Act (ADA)?

According to the U.S. Department of Health Human Services, Long Haul COVID-19 can be a disability under the ADA if it substantially limits one or more major life activities. This includes any physical or mental impairment caused by Long Haul COVID-19, so long as it substantially limits a major life activity. The law is very similar under the Minnesota Human Rights Act (MHRA). The MHRA is Minnesota’s law protecting workers who are disabled, which may include Long Haul COVID-19.

The symptoms of Long Haul COVID-19 vary widely and can be different for everyone. Symptoms can last anywhere between weeks to months or even longer. Every case of Long Haul COVID-19 is different. Therefore, an assessment must be made on a case-by-case basis to determine whether a person’s case of Long Haul COVID-19 substantially limits a major life activity.

If an employee has Long Haul COVID-19 that substantially limits one or more major life activities, that employee is entitled to the same protections from discrimination as any person with a disability under the ADA or MHRA.

This also requires employers make reasonable accommodation for employees who have Long Haul COVID-19, so long as it substantially or materially limits a major life activity.

An employer’s requirement to make such accommodations is based on many factors, for example, the size of the employer and the job duties the employee is responsible for based on their job role. Thus, it is important to seek legal advice if you have questions about your specific situation.

If you feel you have experienced discrimination and/or retaliation at work, based on Long Haul COVID-19  symptoms, our attorneys at Kitzer Rochel, PLLP are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace. Contact us today for a case evaluation.

 

Does My Employer Have to Accommodate My Long-Haul COVID Symptoms?

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COVID-19 has presented many questions for employers and employees. One set of questions surrounds “long COVID,” or “long-haul COVID.”

President Biden announced that the long-term effects of COVID-19 infection can in fact be considered a disability under the Americans with Disabilities Act (ADA). This likely would apply under Minnesota’s Human Rights Act (MHRA) as well.

This means that employees who were infected with COVID-19 and still suffer from symptoms such as respiratory problems, brain fog, chronic pain, and fatigue that rise to the level of a disability are protected under federal law. Such symptoms rise to the level of a disability if they substantially limit a major life activity such as work. Employees with a disability are entitled to reasonable accommodations in the workplace.

If you have questions about ADA accommodations, or if your employer is refusing to provide accommodations or discriminating against you because of a disability, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

What is a reasonable accommodation for a disability and how can I request it from my employer?

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Working with a disability does not have to be stressful. The Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) prohibit employment discrimination against qualified individuals with disabilities. A qualified individual with a disability is someone who fulfills what the position is requiring of an applicant, for example: skill set, experience, education, and any other job-related requirement. It is someone who can perform the basic duties the position entails either with or without reasonable accommodation/s.

All government agencies, and most employers, are required by law to provide reasonable accommodations to both qualified applicants and employees. The only time they would be unable to provide reasonable accommodation is if doing so would pose a direct threat or cause an undue hardship. Otherwise, employers must provide reasonable accommodations (adjustment or alteration), to provide applicants/employees an equal opportunity to compete for a job, equal access to benefits and privileges of employment, and/or to be able to perform the essential functions of the job.

Reasonable accommodations may look like the following:

  • Moving to a different office space;
  • Granting breaks or providing leave;
  • Providing accessible parking;
  • Providing telework or working remotely (including working from home);
  • Providing materials in alternative formats like large print or Braille; or
  • Changing when or how job duties are performed.

Under state and federal laws, individuals with disabilities have a right to request reasonable accommodations that will allow individuals to perform all the essential functions of the job. A job should not have to be burdensome to an individual with disabilities and reasonable accommodations should be request if needed. An employer is not allowed to retaliate against an employee who asks for reasonable accommodation, or who receives an accommodation.

If you feel you have experienced discrimination or retaliation at work related to your disability, our attorneys at Kitzer Rochel are here to help. We advocate on behalf of employees facing discrimination, retaliation, and whistleblower issues in the workplace.

Kitzer & Rochel Defeat Summary Judgment in Federal Court

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In Jason Lindner v. Donatelli Bros. of White Bear Lake d/b/a Donatelli’s, Brian Rochel and Phillip Kitzer defeated summary judgment in U.S. District Court. Lindner’s claims involved FMLA interference and retaliation as well as for seeking time off from work related to his disability. After 18 years of employment, Jason Lindner was fired while on FMLA leave stemming from a recently-developed respiratory airway disease (RADs).  The person who decided to terminate Lindner, Trish Appleby, testified that she relied on video footage to disprove that Lindner fell in the parking lot, justifying her decision to terminate him for falsifying a workers’ compensation claim.

The Court held that summary judgment was not appropriate because there was sufficient evidence for a jury to find that Donatelli’s proffered reasons for termination were pretext for retaliation. First, Appleby admitted she was skeptical of the injury even though Lindner’s account of the fall was “pretty much the same” to the account he gave her.  Second, the Court stated that the video was unclear and could reasonably discredit Appleby’s “adamant testimony” that she could “clearly” tell from the tape that he did not fall.  Likewise, Appleby adamantly claimed that Lindner’s doctor’s note did not contain “one objective” indication of injury, yet the doctor’s note did contain indications that Lindner was injured. Third, the Court found that the timing of Appleby’s investigation into the alleged fall could be considered suspicious.  Appleby did not take it upon herself to investigate the injury until after Lindner suffered the RADs injury and requested time off from work.  Fourth, Appleby testified that Lindner’s previous requests for time off constituted “performance problems” that could have led to his termination.  Finally, Appleby did not provide Lindner the same opportunities to remedy alleged behavioral problems that it provided other employees, even those who committed offenses she considered “flagrant.” The Court held, “This evidence of hostility combined with the timing of his termination and the shaky foundation of her professed belief could lead a reasonable jury to discredit Appleby and conclude her decision was in fact motivated by Lindner’s medical leave.”

Likewise, the Court denied Donatelli’s summary judgment motion on Lindner’s FMLA entitlement claim.  Although Donatelli’s argued that Lindner “never” made an FMLA request, the Court found that the argument is “clearly contradicted by the record.” Lindner submitted a complete FMLA request for the day before he was terminated, and Donatelli’s was “clearly on notice of his potential need for FMLA leave because Appleby raised the issue with him and sent him FMLA paperwork, which stated he was eligible for leave[]”. Accordingly, the Court held that Lindner’s FMLA entitlement claim could proceed to jury trial along with his retaliation claim under state and federal law.

The full opinion, issued by U.S. Judge Richard J. Kyle, is available here.