As I mentioned last week, I have a whole bunch of cases to blog on my pipeline. It took me quite a bit to decide on what to blog on. Ultimately, I decided to blog on Doe v. Northrop Grumman Systems Corporation, a decision that came down from the United States District Court of the Northern District of Alabama on October 22, 2019. I seriously debated whether I should blog on this at all because my colleague, Robin Shea, in her excellent blog, which is in my blog roll, beat me to it here. Her blog entry is excellent, and I already used it to teach my seventh grade class at Congregation Bet Haverim over the weekend. As everyone knows, just because someone beats me to it, does not necessarily mean I preclude myself from blogging on it. Ultimately, I decided to blog on it for a couple of reasons. First, I do think I have a slightly different perspective to offer to Robin’s excellent blog entry. Second, I felt that as a member of my synagogue, which, as I have mentioned previously, was founded about 25 years ago as the home for the LGBT Jews in the Decatur, Georgia area, I felt a blog was in order for that reason as well. So, here goes. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways/thoughts. The reader is free to concentrate on any or all of the categories.

I

Facts:

Around 2014, plaintiff was diagnosed with gender dysphoria. That led the plaintiff to begin a gender transition by undergoing hormone replacement therapy during March of 2016, while still on active duty with the U.S. Army. One of the reasons, she wanted to work at Northrup was their diversity policy, which specifically stated that the Corporation was committed to retaining and hiring a diverse workforce. Further, they stated they were proud to be an EEO Affirmative Action employer and did not make decisions based on a variety of factors including sex, sexual orientation, and gender identity. Plaintiff’s original supervisor at Northrup had no problem with plaintiff making the transition to another sex and assured the plaintiff everything was in order going forward with respect to her work environment. However, that supervisor was replaced by another person three months later. That person, a Brian Walker, according to the complaint, simply did not see things the same way. In particular: 1) he informed the plaintiff that he would not allow her to deploy to a foreign position because of concern that something might happen to her as a result of her transitioning to another sex; 2) his solution was to deny plaintiff’s request for the opportunity to deploy to a foreign position; 3) he also sought plaintiff’s transfer to a different department; 4) he undertook efforts to hinder plaintiff’s ability to deploy, derail plaintiff’s career and seek plaintiff’s transfer because of plaintiff’s female sexual characteristics and/or plaintiff’s transitional state; 5) once Walker made the decision to essentially end plaintiff’s engineering career, plaintiff contacted the HR department to complain about the supervisor’s discriminatory actions; and 6) a few weeks later, the HR department informed plaintiff that plaintiff would be laid off in two weeks as deployment was a requirement of the job plaintiff was performing. Plaintiff filed a charge of discrimination with the EEOC alleging both violations of the ADA and title VII, and plaintiff was eventually notified of the right to commence suit within 90 days. That suit was filed within the 90 day period.

II

Court’s Reasoning Granting the Motion to Dismiss

  1. Plaintiff’s complaint alleging discrimination because of the perceived stereotypes regarding the female gender and subjecting plaintiff to less favorable working conditions as a result are barely sufficient to meet the Twombly-Iqbal pleading standards. Nevertheless, barely sufficient works, and the title VII hostile work environment claims get to go forward.
  2. The question in this case is whether the plaintiff has a disability at all under the ADA.
  3. 42 U.S.C. §12211(b) specifically says that disability under the ADA does not include, “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”
  4. 42 U.S.C. §12211(b) has not been amended since it was enacted on July 26, 1990. While the statute utilizes the term “gender identity disorders,” that term was replaced in 2013 by the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders with the term, “gender dysphoria.” Accordingly, “gender identity disorder,” and “gender dysphoria,” are legally synonymous for purposes of ADA coverage.
  5. No clear allegations in the plaintiff’s complaint exists stating plaintiff’s gender dysphoria resulted from a physical impairment.
  6. Doe v. Massachusetts Department of Corrections and Blatt v. Cabela’s Retail Inc, I have blogged on both cases previously, are not persuasive authority for a case arising in Alabama.
  7. Plaintiff in plaintiff’s response to defendant’s motion to dismiss the ADA claim does allege a violation of equal protection clause of the U.S. Constitution. However, the burden is on the plaintiff to disprove every conceivable basis supporting the classification whether or not the basis has a foundation in the record. Plaintiff has not done so in this case.

III

Takeaways/Thoughts

  1. Did I say how much I enjoyed Robin’s blog entry on this case?
  2. How the title VII case ultimately fares will very much depends upon the Supreme Court decision in the transgender case just heard, which we discussed here. It wouldn’t surprise me if the defense petitions the court to put the case into a state of suspended animation pending the Supreme Court decision, which probably won’t come down until June of next year.
  3. When it comes to any kind of disability discrimination case, do not go with notice pleadings. As a result of the way Twombly-Iqbal have been interpreted over the years, the best approach for a plaintiff is to allege enough facts so as to put a reasonable person on notice at to what the problem is. Think of it as a fact-notice based hybrid system.
  4. The roadmap for a violation of the equal protection clause can be found in Doe v. Massachusetts, which we discussed here. Doe also has a discussion about how gender identity disorder and gender dysphoria are not the same thing. An attorney bringing forth a disability discrimination case on behalf of a transgender individual will definitely want to rely on Doe for the proposition that gender identity disorder and gender dysphoria are not the same.
  5. An attorney bringing a claim on behalf of a transgender individual alleging the ADA’s exclusion violates the transgender individual’s equal protection rights will also want to rely on Doe for how it places transgender individuals into the equal protection scheme. Here, it is clear that the Alabama District Court places transgender individuals into the rational basis class when it states that the plaintiff has to knock out every conceivable reason for the exclusion.
  6. Doe arguably placed transgender individuals into a higher equal protection class than rational basis thereby making it unnecessary to knock out every conceivable reason for the exclusion.
  7. Especially in light of the oral argument in the transgender case before the Supreme Court, discussed here, I do expect this case to gain a lot of currency around the United States. So, that means transgender individuals alleging discrimination under the ADA should allege if at all possible, the gender dysphoria results from a physical impairment. Also, a transgender plaintiff will want to allege in the alternative that the plaintiff’s equal protection rights are violated.
  8. As I have mentioned previously numerous times, the 11th Circuit has been very friendly to people with disabilities. However, I have no idea what the 11th Circuit might do with respect to how it would handle the questions: 1) are gender dysphoria and gender identity disorder really the same?; and 2) what equal protection class transgender individuals fall in? Complicating things further, is the oral argument that took place in the Supreme Court on the transgender case. As I mentioned in that blog entry, a big question exist as to whether the transgender individual will be successful and even whether such lack of success will be close. Ultimately, unless the ADA is amended, both of these issues will wind up at the United States Supreme Court.
  9. In some jurisdictions, the plaintiff may have a breach of contract action for the company’s violation of its employee handbook.
  10. I can’t tell you how many times a new supervisor messes up a perfectly working situation. Why fix it if it ain’t broke.
  11. Training, training, training of current supervisors and anybody who is a new supervisor is essential.

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