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Being Transgender is Covered by ADA, PA Court Decides

When we think of disabilities, being transgender-hopefully-is not something that comes to mind. This is for a simple reason, gender identity is state of being rather than a disorder. However, out in Pennsylvania, Judge Joseph Leeson was recently saddled with the unenviable position of parsing how gender identity should be handled under the Americans With Disabilities (ADA)—the act which provides federal protection against discrimination based on a disability.

This ruling is the first of its type and had some serious hurdles to overcome to include gender identity as a disability under the ADA. When the ADA was first passed gender identity was specifically excluded from being classified as a disability. It wasn’t in particularly good company, other specific exclusions include kleptomania, pyromania, and pedophilia. The unfortunate truth is that the exclusion was a bit of a product of the times when the ADA was passed. At the time, congress specifically railed against the inclusion of so-called “immoral” medical conditions. Thus, gender identity was unfairly lumped in to ADA exceptions. However, the exception remains as part of the law. Truthfully, despite it’s unfortunate conception, being transgender is not a disorder or disability in and of itself. Including it under the ADA seems out of place for that reason. However, like most things in law, the question before Judge Leeson was one of definition. In order to understand the Judge’s ruling, ultimately including gender dysphoria as a disability, let’s look at how a disability is defined and the ruling itself.

What is a Disability Under The ADA?

In 2008, the ADA updated their definitions of what exactly constitutes a disability.  The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The changes also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

transgenderUnderstanding Judge Leeson’s Ruling

So does gender identity constitute a disability? Absolutely not. However, Judge Leeson’s ruling recognized a clear distinction between gender identity and gender dysphoria-the distress created by the differences between a transgender person’s gender and the gender they were assigned at birth. Let’s take a look at the facts of the case to figure out how he got there.

The case involves one Kate Lynn Blatt suing Cabela’s Retail, her former employer, for firing her based on her diagnosed gender dysphoria. Ms. Blatt was not allowed to dress and act as woman while working for Cabela’s. This became a point of contention between her and her employer. Under the ADA, an employer is required to provide reasonable accommodations to a disabled employee. However, Cabela’s refused to let Ms. Blatt dress as a woman and allegedly eventually fired her over it. This led to Ms. Blatt’s ADA retaliation claim. A retaliation claim requires her to show that she engaged in protected activity under the ADA and that adverse employment action was taken against her based on this action.

The ruling in question was on a motion to dismiss the case entirely. Thus, Judge Leeson needed only to find that the facts and law were sufficient to show that Ms. Blatt had a plausible claim under the ADA. The facts were there, Blatt had diagnosed gender dysphoria and it is at least plausible she was fired over her desire to dress as a woman-a very reasonable accommodation to require. The question came down to whether gender dysphoria was a disability under the ADA.

The ADA specifically excludes gender identity. However, Blatt argued that her gender dysphoria substantially limited major life activities for her including how she interacted with other and social and occupational functioning. Ms. Blatt further argued that the outright exclusion of gender identity from the ADA was either not meant to be interpreted as a blanket ban on any element of gender identity or the existence of such a ban violated her equal protection rights.

Judge Leeson agreed to a certain extent. Where the constitutionality of a law is called into question, judges are advised to look for an interpretation of the statute that reads in a constitutional manner. The Judge found this middle ground-the distinction between gender identity and gender dysphoria-a condition clearly associated in the medical community with stress and other disabling impairments. He determined that if the exclusion of gender identity disorders in the ADA excludes gender dysphoria it would undermine the statute itself. Instead, he chose to construe the exclusion of gender identity very narrowly and preserve the intent of the statute.

In a motion to dismiss, this was enough. If gender dysphoria can be a disability then Blatt had given enough facts to get past this initial threshold.

What Does This Ruling Mean?

Gender identity disorders, as opposed to gender identity itself, has had an unfortunate position in the ADA since the law was first passed. This ruling is a huge step for the transgender community. These protections are something that have been unfairly placed out of reach for decades.

However, it is important to recognize what this ruling is and what this ruling is not. First and foremost, it is a ruling on a motion to dismiss. While the analysis of the law from this judge will not change as the lawsuit progresses, a big victory for the LGBT community, this ruling may well be appealed and the lower standard of these type of motions mean that Ms. Blatt is far from a guaranteed victory. Also important to keep in mind, Judge Leeseon’s analysis allows the ruling to bypass a larger issue. By reinterpreting the law in a way that avoids potential constitutional issues, Leeson made it unnecessary to decide whether the exclusion for gender identity disorders violates Blatt’s equal protection rights. This ruling is a big step, but it must be recognized as a step and not a leap. The full implications of this ruling, and whether it will stand up in the long term, still remain to be seen.

20-Week Abortion Ban From Tennessee Means Big Changes for Pregnant Women

The governor of Tennessee recently signed a bill into law, effective July 1, which further regulates abortion in the state. Under this newly enacted measure, called the “Tennessee Infants Protection Act,” doctors are subject to criminal liability if they perform an abortion on a viable fetus and fail to show it was necessary to prevent the death or substantial and irreversible harm to the pregnant woman’s major bodily functions. A doctor may face license suspension and imprisonment for failing to comply with the act.

What Constitutes a “Viable” Fetus?

Under the act, once a fetus is viable, abortion is prohibited. “Viable” is defined as the stage of fetal development when an unborn child is able to survive outside the womb, with or without medical intervention. In Tennessee, there is a “rebuttable presumption” of viability at the gestational age of 24 weeks. (Gestational age is calculated from the first day of a pregnant woman’s last menstrual period.)

Though the act is often termed the “20-week abortion ban,” proponents of the act argue it merely requires doctors to assess fetal viability at the 20-week point in gestational age, if there is no medical emergency warranting a physician to immediately induce or perform an abortion. A physician’s good faith medical judgment that the fetus is not viable is an affirmative defense under the act.

What Medical Conditions Fall Under the Act?

If a physician determines the fetus is viable, the other affirmative defense is the abortion was necessary to save the pregnant woman’s life or prevent “serious risk of substantial and irreversible impairment of a major bodily function.” There are certain medical conditions which can complicate pregnancy and potentially cause death or “substantial and irreversible impairment of a major bodily function.” Examples include, but are not limited to, pre-eclampsia, diabetes, and multiple sclerosis. However, any condition relating to a pregnant woman’s mental health, regardless of the reason, does not fall within the purview of the act. In addition, the act does not include cases in which a woman’s own conduct results in substantial bodily harm or her death.

abortion banThe Impact of the Act on Pregnant Women in Tennessee

Among the potential obstacles for pregnant women in Tennessee are the narrow exceptions provided for an abortion to be permitted under the act. The prevention of death or substantial harm to a woman’s health are the only exceptions. Circumstances of rape or sexual abuse which can result in pregnancy are not exceptions under the act. This is particularly problematic if a woman does not know she got pregnant as a result of the abuse until later in her pregnancy. Additionally, what if the ultrasound routinely performed at 20 weeks reveals a serious abnormality with the fetus? Due to the narrow exceptions under the act, a pregnant woman receiving such news would automatically be prevented from making the right, albeit difficult, decisions for her and her family.

Further, if the woman’s physician determines an abortion is necessary to save her life or prevent substantial harm to her health, this conclusion is not enough. Under the act, a second physician, who is not professionally related to the first physician, must make the same determination and certify it in writing. This requirement can delay a woman’s ability to receive the necessary medical treatment for a potentially life threatening condition. As long as her condition is not an emergency (the need for an abortion is not immediate), she must get the second opinion. In addition, access to the second physician might be problematic. Per the act, the two physicians cannot be professionally connected, which means the pregnant woman, already in a fragile state, might need to travel in order to receive the second opinion. In the meantime, during such delays, family members—partners, spouses, young children—who depend on the pregnant woman will be negatively affected. Also, as mentioned above, the act does not allow conditions relating to mental health to come under the exception. However, such conditions can still have a detrimental impact on a pregnant woman and her loved ones.

Regardless of where one stands in this debate, the act will undoubtedly impact pregnant women in Tennessee who seek an abortion for various reasons. Proponents of the act question how a doctor or pregnant woman could proceed with a late term abortion, especially when it is proven the fetus could thrive as a human being outside the womb. On the other hand, the act’s opponents argue it infringes on a woman’s constitutional right to decide what is right for her and her body, as well as impedes her ability to do what is best for her family and work with her doctors regarding her health and well-being.

FMLA: Your Rights May Have Been Expanded by the 6th Circuit

Just a few days back, the 6th Circuit Appeals Court made a ruling in the case of Marshall v. Rawling Co. which has the potential to substantially expand your rights under the Family and Medical Leave Act (FMLA).  They did this by expanding the situations in which a company can be liable for taking adverse action against you after you assert your FMLA rights.

The 6th Circuit did this by accepting cat’s paw liability in FMLA claims. Cat’s paw liability refers to a situation where one party uses another to accomplish their purpose. This has the potential to give you a case against an employer for FMLA violations where one previously didn’t exist. I’ve discussed the FMLA, and how to protect your rights under it, in a previous article. So, with that in mind, we’ll focus here on what the FMLA is and how this ruling changes your rights under this act.

What is the FMLA?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness. In fact, it only applies to employers with more than 50 employees at a single location. If it applies, then the employer must extend the protections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

FMLAEven if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

The Facts of the Marshall Case

Gloria Marshall, an employee of Rawling, suffers from depression, anxiety, and post-traumatic stress disorder.  But to find the time to receive treatment for these mental-health problems, Ms. Marshall took time off from work using FMLA leave.  When Ms. Marshall returned, she had a backlog of work due to her unexpected leave leaving her with unfinished projects when she left.  These combined with the new work assigned to her to leave her overwhelmed.  She requested help with this work and, while Rawling says she received that help, she says they refused.  Other employees in similar positions also testified that basically every employee had a backlog to some extent due to the amount of work assigned to each employee.  While Ms. Marshall eventually cleared this backlog, the Vice President of the company-Jeff Bradshaw-made it clear in emails that he was worried about another backlog arising.

Ms. Marshall was subsequently demoted after Mr. Bradshaw recommended a demotion to her division head Laura Plumley.  This demotion was apparently unrelated to the FMLA leave.  Ms. Marshall continued to take occasional FMLA leave, but apparently excelled in her new position.  Despite this, Bradshaw apparently severely criticized her performance and singled her out at work in embarrassing ways.  At a meeting, Bradshaw made it clear he was disappointed in how often she had taken FMLA leave.  Ms. Marshall eventually reported Mr. Bradshaw’s treatment of her, although she delayed out of fear of being fired. The allegations were reported to the company’s owner George Rawlings, who decided that she was making false reports to cover poor performance and fired her.  Ms. Marshall sued, saying that her firing was retaliation for her FMLA leave.

What Does the Marshall Ruling Mean For Your Rights?

This is where the cat’s paw theory of liability comes into play, and where the 6th Circuit Appeals Court’s decision comes into play. For instance, there have been cases where a company is liable for discriminatory firing where a biased subordinate uses an official decision maker as a sort of a dupe in enacting their own scheme of by asserting their own influence on that decision maker.

The idea behind cat’s paw liability is that the organizational chart of a company doesn’t necessarily reflect the true decision making process.  As in the example above, a decision maker will often rely on the recommendations of others lower on the totem pole or unrelated to the decision-as Ms. Plumley did with Jeff Bradshaw’s recommendation when she demoted Ms. Marshall.  Basically, this decision means that if somebody who doesn’t make the final decision as to your employment status mistreats you based on your FMLA rights you may still have a lawsuit despite the fact that they aren’t the ones taking adverse employment action against you.

The 6th Circuit Appeals Court is not the law over the entirety of the U.S.  However, the decision has the potential to very persuasive in other Circuits and is the law in the states of Michigan, Ohio, Tennessee, and Kentucky.  The case is even more persuasive as many other Circuits have consistently applied cat’s paw liability in other employment contexts such as Title VII discrimination cases.  The exact impact of the case is yet to be seen.  However, there is no question that your FMLA rights just got stronger.

Trumpcare: Who Will Suffer Under the New Plan?

For the past several years, the GOP has vocalized their opposition to Obamacare. Now that they have control of Congress and the Executive branches, they’re finally doing something about it.

The American Health Care Act, coined “Trumpcare,” is the Republicans’ response to the “failed” Obamacare.

Why Repeal Obamacare?

According to the GOP, Obamacare is collapsing, and it must be repealed in order to protect Americans. They point to health insurance premiums that were created by the law that increased markedly this year. Why? Insurers didn’t anticipate so many medical claims would be filed by their consumers. If you believe the GOP’s argument, Obamacare is unsustainable and will eventually leave millions without health care. According to the Speaker of the House of Representatives Paul Ryan, it is an “act of mercy” introducing a new health care bill.

But the proposed Trumpcare would actually leave millions more uninsured. Under Obamacare, most people are still able to get health plans for less than $100 due to subsidies provided under the plan, which taxes the wealthy in order to provide health insurance plans to the masses. Trumpcare no longer will tax the wealthy to help subsidize health care for those who struggle to pay for health insurance.

Who Will Suffer Under Trumpcare?Trumpcare

Trumpcare will leave millions of people without health insurance. It will potentially leave 14 million Americans uninsured under the new health care bill than under Obamacare in 2018, rising to 24 million by 2026.

There are also specific groups of people who will be most negatively impacted by Trumpcare.

Low-income Elderly

According to an analysis by the Congressional Budget Office (“CBO”), the American Health Care Act would be devastating to older Americans who obtain their insurance from the individual market. While the proposed bill will lower overall premiums in the individual market by 10 percent by 2026 as compared to Obamacare, the premium amounts depend on age and income. Specifically, a younger and presumably healthy person could pay less in premiums than an elderly person with many ailments.

The CBO gave this example: a person with an annual income of $26,500 that is 21 years would pay on average $1,700 in premiums for insurance on Obamacare, but on Trumpcare, that same person would pay $1,450. Sounds great, right?

But if that person is 64 years old with the same annual income of $26,500, he would still pay $1,700 in premiums under Obamacare, but pay a whopping $14,600 in premiums under Trumpcare. That’s more than half of his income toward medical premiums. For most, that is prohibitively expensive.

Women on Medicaid

The amount of women on Medicaid who seeks contraceptive care will lose that care in enormous numbers. The Trumpcare proposal plans to defund Planned Parenthood for one year. It will prohibit patients from using their Medicaid coverage at Planned Parenthood. Medicaid is a government program that helps low-income people obtain medical coverage.

Defunding Planned Parenthood will affect services that help women avert pregnancies. Moreover, there are few health care clinics or medical practitioners that are willing to serve the low-income population. Restricting access to contraceptive care can lead to several thousand more births to children that will eventually be on Medicaid themselves. Ultimately, this could cost as much as $21 million in 2017.

Trump Supporters

Ironically, Trumpcare will severely hurt many of those that voted for him. Research shows that the Trump voter does better under Obamacare than Trumpcare. How can this be? Most of the people who voted for Trump were older, lower-income citizens. It appears that despite all his promises regarding health care to his voters, Obama did more for them than Trump. When confronted with this reality in an interview, President Trump responded, “Oh, I know.” Go figure.

Trumpcare: Who Benefits From the New Plan?

After months of talk, the GOP released what is now being called “Trumpcare”. The health care reform bill, known as the “American Health Care Act,” is being presented in response to Obamacare, also known as the “Affordable Care Act”. During his campaign President Trump promised he would repeal Obamacare as one of his first orders of business. Now in two months, it appears he and the Republican party are making good on their promise.

But now that the GOP has presented their plan, people are starting to think Obamacare wasn’t so bad.

Obamacare

In 2009, the Democratic members of Congress passed the Affordable Care Act. It was signed into law by President Obama in 2010. Republicans hated it, although it has done a lot of good. For one, it guaranteed that people with preexisting health conditions could not be rejected by insurers or charged more than others. It also allows children to stay on their parents’ plan until they turn 26. As a result, more than twenty million uninsured people now receive health insurance coverage. Access to primary care, specialty care, medicines, surgeries, and treatment for chronic conditions has risen. It’s projected that Obamacare saves tens of thousands of lives every year. Obamacare also expanded Medicaid and helped people living near the poverty line obtain health coverage.

But for all the good Obamacare has done, it certainly has its problems. For instance, high deductibles for its Bronze plan users make up about 20 percent of its customers. Notwithstanding, people are realizing all the benefits they will miss now that the Republican-backed Trumpcare has been released.

TrumpcareHow Obamacare was Funded

The Affordable Care Act is funded by single taxpayers with incomes above $200,000 and couples making more than $250,000 annually. They pay an additional 0.9% Medicare payroll tax. There’s another 3.8% tax that applies to investment income properties which also helps fund Obamacare. The two taxes have been in effect since 2013.

Major Modifications for Trumpcare to Benefit the Wealthy

Under the proposed Trumpcare bill, people earning more than $1 million per year are projected to save approximately $165 billion in taxes over 10 years. The legislation is looking to eliminate two surcharges on the rich that helps pay for Obamacare, but the taxes would end after this year.

It’s not just the millionaires that benefit from Trumpcare. People who earn between $500,000 and $1 million per year also get a tax break of nearly $55 billion over a decade. Further, those with annual incomes of between $200,000 and $500,000 save approximately $53 billion.

Reaction to Trumpcare

The financial implications for the rich of Trumpcare have Democrats and Republicans alike upset. Trumpcare seems to benefit tax filers in the top 1%, or those who earn more than $772,000 a year, who expect to enjoy a $37,000 tax cut in 2022. The top .01% will receive a tax cut of more than $207,000. Clearly the bill will benefit the ultra wealthy.

At the same time, it’s the lower-income Americans that stand to suffer the most. Specifically, those who are insured through Medicaid or subsidized policies will suffer under the legislation. The new health care bill will potentially leave 14 million Americans uninsured than under Obamacare in 2018, rising to 24 million by 2026. In total, approximately 52 million people would be uninsured by 2026 under the GOP plan, compared to 28 million who would lack insurance under the current law.