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For the February 2023 issue of Virginia Lawyer, Caroline Jaques and Matthew Sarfan authored an article detailing an August 2022 ruling in the Fourth Circuit Court of Appeals that gender dysphoria meets the definition of a disability within the meaning of the Americans with Disabilities Act (ADA) and does not fall within the purview of the ADA’s specific exclusion for “gender identity disorders not resulting from physical impairments.”

“The Court was one of the first federal courts to reach this conclusion,” Jaques and Sarfan said, before detailing the implications of the decision for covered employers and practical guidance on handling ADA requests related to gender dysphoria following this ruling in Williams v. Kincaid.

“The Williams decision has broad implications for employers covered by the ADA, particularly those within the jurisdiction of the Fourth Circuit (which notably includes the Commonwealth of Virginia),” the attorneys wrote. “Though the facts of Williams arise out of the treatment of an individual during incarceration, the Court’s conclusion will likely apply to the workplace.”

Following the ruling, employees experiencing gender dysphoria are likely subject to the anti-discrimination, anti-harassment and anti-retaliation protections of the ADA. Employers should remember that this holding also likely entitles such employees to reasonable accommodation.

“It is important to remember that not all transgender or gender diverse individuals experience gender dysphoria,” Jaques and Sarfan elaborated. “Thus, it is critical that accommodation requests are evaluated on a case-by-case basis and decisions should be based on an interactive dialogue with the employee and information.”

For the full article, please click here.

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Heather A. Scott

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