Document 2567696

NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION
40TH ANNUAL ROBERT F. WAGNER
NATIONAL LABOR & EMPLOYMENT LAW
MOOT COURT COMPETITION
IN THE
Supreme Court of the United States
SPRING TERM, 2016
DOCKET NO. 16-24
BEETZ, INC.,
PETITIONER
V.
ERIKA RITE,
RESPONDENT.
On Writ of Certiorari to the
United States Court of Appeals
for the Thirteenth Circuit
THE FACT PATTERN
Cite as: 585 F. Supp.3d 1 (S.D. Wgr. 2015)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WAGNER
--------------------------------------------------X
ERIKA RITE,
Docket No. 15-cv-2851
Plaintiff,
-againstBEETZ, INC.,
Defendant.
--------------------------------------------------X
August 5, 2015
JENNER, K. . U.S. District Judge
Erika Rite,1 as plaintiff in this matter, has filed suit alleging that her former employer,
Beetz, Inc. (“Beetz”), violated Title VII of the Civil Rights Act of 1964 (“Title VII”) by denying
her a promotion because of her transgender identity. 42 U.S.C. § 2000e-2(a) (1964). Rite further
alleges that her medical leave, taken to recover from gender reassignment surgery, is covered
under the Family and Medical Leave Act of 1993 (“FMLA”). Rite seeks compensatory and
punitive damages for the Title VII claim, as well as back pay with interest, attorney’s fees, and
costs for the FMLA claim. The defendant moves to dismiss these claims, arguing that Rite has
not been subjected to sex discrimination, as recognized under Title VII, and that gender
dysphoria does not qualify as a “serious health condition” under the FMLA. For the reasons set
forth below, both of the defendant’s motions are GRANTED and the plaintiff’s claims are
DENIED.
1
This court acknowledges and respects Erika Rite’s gender identity as a woman. Any reference to Erika as a man is
to reflect Erika’s former gender presentation as a man and to provide an accurate summation of the factual history
of this case. 2
I. STANDARD OF REVIEW
When considering a motion to dismiss, a court must construe the pleadings in a light most
favorable to the plaintiff and accept all well-pleaded factual allegations as true. Evans-Marshall
v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir. 2005). The plaintiff must bring forth "enough facts
to state a claim to relief [*2] that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). If a plaintiff demonstrates a considerable amount of facts that support and prove
the claim, then a defendant’s motion to dismiss may be denied. Id.
II. BACKGROUND
The following facts are taken from Plaintiff’s complaint. All factual allegations from the
complaint are assumed to be true for purposes of this motion.
Plaintiff, Erika Rite,2 was born and raised in rural Trippington, Iowa, a traditional town.
Rite was designated male at birth and was given the name Eric. Beginning in her adolescent
years, Rite experienced extreme confusion about her gender identity because she always
identified as female. After Rite graduated from high school in 2002, she decided to leave Iowa,
concerned that people in her town would not accept her gender identity; she pursued a college
degree at Wagner State University in Kompton, Wagner (USA). Unlike Trippington, Kompton
was known for its diverse population and liberal perspectives. Rite graduated from college, and
went on to earn a Master’s degree in Business Administration (“MBA”) with a concentration in
marketing. Although Rite felt more welcomed in Kompton than she had back in Trippington, she
continued to express herself as a man and used her birth name, Eric. However, Rite continued to
[*3] feel uncomfortable identifying as a man. After obtaining her MBA, Rite was hired by Beetz,
a multi-billion-dollar corporation that is one of the top developers, producers and distributors of
2
This court will use female pronouns when referring to Plaintiff Erika Rite because Plaintiff identifies as a
transgender woman.
3
audio output devices worldwide. Beetz was established in 1995 by Andre Young, a creative and
savvy musician who was born and raised in Kompton. Young worked extremely hard to create
and maintain the sophisticated and classy image of Beetz, and he currently serves as the
company’s CEO.
In 2005, Rite began working as a sales consultant in Beetz’s sales department. Her duties
included creating new brands for Beetz, consulting with company investors, and traveling to
meet with representatives of companies and agencies selling Beetz products. Rite excelled at this
position and was promoted to Lead Sales Consultant for developing the most innovative brands
and for generating the highest sales numbers for Beetz products. Moreover, Rite was recognized
as having developed strong rapport and trust with Beetz investors. Investors preferred to meet
with Rite, rather than other sales consultants, to discuss ideas about creative advertising, new
technologies and business decisions that could affect their financial interest in Beetz.
Although Rite excelled at Beetz, she became depressed because of her suppressed gender
expression. While Rite put on a great male persona at work, she went home many nights trying
to reconcile the disharmony she felt between her female gender identity and her presentation as
male. In December of 2012, she consulted with psychotherapist Dr. Warren Gee (“Dr. Gee”)
about her anxiety and [*4] discomfort about her gender identity. During several psychotherapy,
they discussed the history of Rite’s discomfort with her anatomical sex and her self-identification
as female. After a few weeks of psychotherapy, Dr. Gee diagnosed Rite with gender dysphoria.3
According to the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”), gender
nonconformity is not in itself a mental illness. AMERICAN PSYCHIATRIC ASSOCIATION,
3Gender
dysphoria is defined as – “a marked difference between the individual’s expressed/experienced gender and
the gender others would assign him or her.” AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS (American Psychiatric Ass’n et al. eds., 5th ed. 2013). In essence,
gender dysphoria is “people whose gender at birth is contrary to the one they identify with.” Id.
4
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (American Psychiatric Ass’n et
al. eds., 5th ed. 2013). However, if there is significant distress associated with it, the condition
may be categorized as gender dysphoria. Id. Those who experience gender dysphoria often
experience a strong desire to outwardly present as their correct gender identity, rather than the
gender identity assigned to them at birth, dress according to their gender identity, and alter their
body to conform to their gender identity. Individuals experiencing gender dysphoria may also
frequently experience depression or anxiety and tend to withdraw from social interaction as a
result.
In January 2013, Rite began to identify as transgender4. After Rite’s gender dysphoria
diagnosis and numerous visits with Dr. Gee, her mental condition improved significantly. Rite
began taking medication to help with her depression and [*5] anxiety. Over the next year, she
researched treatment options with the help of Dr. Gee, and thought extensively about
transitioning.5 Dr. Gee discussed the implications and risks of Rite’s options. After careful
consideration, Rite decided that she would undergo gender reassignment surgery to be “reborn”
as a woman. Gender reassignment surgery could cost anywhere from $30,000 to $100,000, and
because it was not covered under Beetz’s Employee Health Benefits Plan, Rite promptly began
saving for the procedure.
Rite also began hormone replacement therapy to help in the transition, both in terms of
her physical appearance and her emotional stability. Dr. Gee prescribed a hormone therapy
regimen, which involved administering estrogen and testosterone blockers to facilitate the
change in Rite’s physical appearance to more closely resemble that of a woman. Dr. Gee
4
A transgender person is defined as – a person whose gender identity differs from the sex [a] doctor marked on [his
or
her]
birth
certificate.
GLAAD MEDIA REFERENCE GUIDE – TRANSGENDER ISSUES
http://www.glaad.org/reference/transgender(last visited Sept. 28, 2015).
5
A “transition” is the complex process of altering one’s birth sex, a process that usually occurs over a long period of
time and varies from person-to-person. GLAAD MEDIA REFERENCE GUIDE – TRANSGENDER ISSUES
http://www.glaad.org/reference/transgender (last visited Sept. 28, 2015).
5
informed Rite that she would begin noticing physical changes within one to three months. These
physical changes would include breast growth, decreased muscle mass, softening of the skin, and
slowed growth in body and facial hair. Dr. Gee also informed Rite that she would continue to
notice physical changes over the course of two years, at which point she could undergo gender
reassignment surgery.
In November 2013, Andre Young announced [*6] that Beetz planned to promote a sales
consultant to the position of Executive Distributor, as the former Executive Distributor had
recently retired. The Executive Distributor would be the primary point-of-contact for all of
Beetz’s sales and distribution ventures and would frequently meet with representatives from
other companies and agencies around the world. The person selected would receive a substantial
increase in salary. As founder of the company, Young was very particular about who could best
project the company’s public image. As such, he decided to promote from within the company,
hoping to find someone who (1) had worked for Beetz for a minimum of seven years; (2) had an
exemplary performance record; and (3) appropriately presented Beetz to the industry and to its
customers. Young was well aware of Rite’s exceptional performance in sales and product
development, and he intended to consider her for the position. Young had also heard about
another Beetz sales consultant, O’Shay Jackson, who also had an impressive sales record. Young
considered Jackson and Rite as the two top contenders for the promotion.
O’Shay Jackson started working for Beetz in 2007 as a sales consultant. Although his
performance was not as strong as Rite’s, O’Shay designed a few brands for Beetz and did
exceptional work with a smaller group of investors. He had an MBA with a concentration in
finance, making him valuable in understanding and growing Beetz’s net worth.
In January 2014, Young reviewed the most recent Employee Performance Reviews for
6
both Rite and [*7] Jackson. See Appendix A. Later, Young interviewed both Rite and Jackson
for the Executive Distributor position. Rite believed that her interview went extremely well. She
attended her interview wearing a traditional men’s business suit and tie. After Young and Rite
discussed Rite’s qualifications and experiences at Beetz, Young asked if Rite had anything else
to add. Rite then shared her intent to transition, as she believed she had an open and trustworthy
relationship with other Beetz employees and wanted to inform them of this new chapter in her
life. Rite told Young that she identified as female, was under a physician’s care, and was
receiving hormone replacement therapy. She said that if all went well, she planned to undergo
gender reassignment surgery by the end of 2014, and that she would like to be called “Erika”
from that point forward. Young did not say much in response to this news, but thanked Rite for
her candor and ended the interview.
Rite continued receiving hormone replacement therapy. About one month later, she
began presenting as a woman. She grew out her hair, painted her nails, and wore makeup. She
also wore more feminine clothing, such as blouses, skirts and low heels, all of which were
considered professional female attire for the workplace. The Sales Department team started
talking about Rite’s transition. Some supported her decision, while others scorned her for
behavior they considered immoral. Despite the office gossip, Rite continued to do exceptional
work. Many of the investors supported [*8] her decision, and only a few expressed their
disapproval. However, no investor pulled financial support from Beetz upon learning of Rite’s
transition.
In late February 2014, Young announced that O’Shay Jackson would be the new
Executive Distributor due to his extraordinary skills and performance. Although Rite was
disappointed, she congratulated Jackson and continued working as the lead sales consultant. A
7
week later, Young informed Rite that because “Beetz takes great pride in its image,” he thought
it was in the company’s best interest to relocate her to another department with “less public
visibility.” Rite was transferred to the Graphic Design Department, where she began working as
a graphic designer. Rite continued to receive the same salary as in her prior position, but had
significantly less contact with both Beetz employees and investors. Any contact she did have
with investors was either by telephone or email. Although this was a lateral transfer, in terms of
the company’s organizational structure, Rite was outraged and believed that she was being
discriminated against because of her transgender identity.
Shortly after the transfer, Dr. Gee determined that Rite was ready for gender
reassignment surgery and referred her to Dr. Romel Dreigh (“Dr. Dreigh”). Once Dr. Dreigh
approved Rite for surgery, Rite discussed her plans with Tamika Woods (“Woods”), the Director
of Human Resources (“H.R.”) at Beetz, in order to find out what the company’s policy was on
her need to take a medical leave. Woods then referred Rite to [*9] the Beetz Employee
Handbook (the “Handbook”) for information about medical and sick leave. See Appendix B.
On November 1, 2014, Rite applied, in writing, for FMLA leave. She had already
exhausted most of her paid sick leave due to her hormone therapy sessions with Dr. Gee. On
November 7, 2014, Ms. Woods requested that Rite submit a medical certification form in support
of the requested leave. Dr. Dreigh filled out the medical certification and Rite submitted the form
to Woods on November 8, 2014. As of November 13, 2014, Rite had not received a response
from H.R. about her pending FMLA application. Rite contacted Woods to inquire about the
application’s status. Woods informed Rite that, due to the unprecedented nature of her request,
her FMLA leave application had been referred to senior management for a final decision.
Concerned about the status of her application, Rite emailed Young to further inquire about her
8
application. Mr. Young replied to Rite’s email and informed her that the matter was being
referred to Beetz’s legal department. He also advised her not to be concerned about the logistics
of the approval procedures and informed her that she would be contacted soon, although he did
not mention a specific time by which a decision would be made. Confident that her application
would be approved, Erika chose to move forward with her plan to undergo surgery.
On January 30, 2015, Rite underwent gender reassignment surgery, as well as breast
augmentation and further surgery to “feminize” her facial features. After [*10] surgery, Dr.
Dreigh informed Rite that she should stay in bed for at least one week. She would begin to feel
more comfortable within one to two weeks post surgery, at which time she would be able to
return to her daily activities. Dr. Dreigh also warned Rite about the possible complications that
could arise and advised her to avoid strenuous activities for about three to four weeks so as not to
disrupt the healing process.
On February 1, 2015, Woods left a voicemail for Rite, informing her that her FMLA
leave request was denied and, because Rite had exhausted her accrued paid sick leave, any
additional leave taken would result in disciplinary action. Although the message was left on
Rite’s home telephone, Rite did not review the message until February 8, 2015. Rite had planned
to return to work on March 6, 2015. However, on February 27, 2015, Woods called Rite and
informed her that she was terminated due to her continued absence.
On March 13, 2015, Rite filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging that Beetz had engaged in sex discrimination on the basis of
transgender identity. Rite demonstrated that she was more than qualified for the Executive
Distributor position because of her experience and performance within the company, and that the
position was improperly given to a less senior, less qualified employee. . She also alleged that
9
she experienced adverse treatment in the workplace after she began to present herself as a [*11]
woman and asked to be called “Erika.” After investigating her claim, the EEOC determined that
Rite’s allegations had merit and met the prima facie threshold in alleging sex discrimination
under Title VII of the Civil Rights Act and in light of Macy v. Holder, No. 0120120821, 2012
WL 1435995 (E.E.O.C. April 20, 2015). The EEOC informed Rite that she was entitled to file a
federal suit under Title VII and issued her a Right to Sue notification with its determination
letter. On April 3, 2015, Rite filed a suit against Beetz, Inc. in the Wagner District Court,
claiming a violation of both Title VII and the FMLA.
III. DISCUSSION
A. Title VII Claim
The first issue presented is whether discrimination against a person because he or she is
transgender violates Title VII, on the basis of sex discrimination. The court holds that such
discrimination is not “because of sex,” and is thus not covered under this federal provision.
1. Title VII of the Civil Rights Act of 1964
Section 703 of Title VII of the Civil Rights Act of 1964 states that it is unlawful for an
employer to discriminate against any individual because of the person’s race, color, religion, sex
or national origin. 42 U.S.C. § 2000e-2(a) (1964). In an unlawful employment claim, the plaintiff
must show that the defendant is an employer who took an adverse action against an employee on
the account of one of these [*12] characteristics. McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).
2. Title VII § 703 Prohibition of Sex Discrimination
The Civil Rights Act should be given a narrow and traditional interpretation to reflect
Congress’s intent at the time of its enactment to avoid unduly restricting the ability of a business
10
to make crucial business decisions. Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750, (8th Cir.
Jan. 8, 1982) (per curiam). In Sommers, the plaintiff was a transgender woman whose employer
stated that she was fired because her transsexuality created a misrepresentation to female
employees and disrupted the company’s work routine. Id. at 748–49. The Eighth Circuit held that
Title VII did not prohibit discrimination because of transsexuality because such a broad
interpretation would contradict Congress’s intention of covering the biological sex anatomy. Id.
at 750. The court said that Congress was not concerned about the psychological makeup of a
person’s sexual identity. Id.
Although the Supreme Court has not addressed the question, many federal courts have
held that Title VII does not prohibit discrimination because of a person’s gender identity or
transition status. In viewing the plain text of the statute, the “sex” characteristic plainly means
that an employer is prohibited from discriminating against an employee because the employee is
biologically female or male. See Ulane v. E. Airlines, Inc., 742 F. 2d 1081, 1087 (7th Cir. 1984).
Considering solely the plain meaning of the text, it is not unlawful to discriminate against a
person who has a [*13] gender identity disorder. 42 U.S.C. § 2000e-2(a) (1964). Plaintiff
erroneously relies upon Price Waterhouse v. Hopkins, arguing that the Court’s Title VII
recognition protects women from discrimination because they fail to meet the employer’s
standard for feminine appearance and behavior. 490 U.S. 228 (1989). However, the female
plaintiff in Price Waterhouse was born biologically female. Unlike Rite, the employee in Price
Waterhouse was held to a standard of portraying female stereotypes while working. Id. Price
Waterhouse focused on societal stereotypes in the workplace, only mentioning gender in relation
to how a biological female cannot be discriminated against for not conforming to feminine
stereotypes. Id.
11
Moreover, there is no evidence in the legislative history of Title VII demonstrating a
congressional intent for the term “sex” to include anything more than its traditional biological
meaning. Ulane, 742 F.2d at 1087. Indeed, the Seventh, Eighth, and Tenth Circuits have all
adopted this view. See Id. at 1084; Sommers v. Budget Mktg., Inc., 667 F. 2d 748, 750 (8th Cir.
1982). When Title VII was introduced as a bill, it included only race, color or creed. Francis J.
Vaas, Title VII: Legislative History, 7 B.C.L. Rev. 431 (1966). The recognition of sex
discrimination itself was late in its inclusion under Title VII. At the bill’s second introduction,
when the categories of discrimination were expanded to include religion, national origin and
citizenship, there was still no mention or consideration of sex. Id. There are no committee reports
or any other forms of legislative history [*14] to reflect Congress’s intent to include sex, let
alone define it.6 Congress’s inclusion of sex in Title VII was a late consideration in the stages of
finalizing the bill that was strictly limited to discrimination because of biological sex.
Title VII was enacted in 1964. There is no evidence that Congress was concerned about
gender identity or transgender persons at that point in history. Id. Plaintiff argues that Justice
Scalia’s statement in Oncale v. Sundower Offshore Serv., arguing that courts must go beyond the
“principal evil” of Title VII, the statue’s enumerated traits, in order “to cover reasonably
comparable evils,” which would be prohibiting sex discrimination because of gender identity.
523 U.S. 75, 79 (1998). However, considering gender identity as being within the realm of
prohibited sex discrimination is an extreme and unfathomable stretch beyond Congress’s intent,
which this court refuses to recognize. Transgender identity has become more a social
understanding in recent years, but Title VII aims to forbid discrimination for one’s natural
biological anatomy. Furthermore, Oncale focused on sexual harassment and a hostile work
6
Additionally, Congress expressly excluded this kind of discrimination for coverage under the American with
Disabilities Act. 42 USCS § 12101 (1990). 12
environment, which is not evidenced in the present case.
Indeed, Congress has explicitly rejected several attempts to adopt a more inclusive
amendment to Title VII, which would protect transgender and homosexual people against
discrimination. Ulane, 742 F.2d at 1081. In June 2015, Representative David N. Cicilline of
Rhode Island introduced the [*15] Equality Act of 2015, which seeks to amend the Civil Rights
Act of 1964 to include sex, sexual orientation and gender identity as prohibited categories of
discrimination. H.R. 3185, 114th Cong. (1st Sess. 2015). The fact that Congress is currently
considering this bill is further proof that Congress did not intend to include these categories
under Title VII; this amendment recognizes that these categories have been treated as being
excluded by most courts. Only Congress has the constitutional power to consider and adopt a
broad interpretation of Section 703 of Title VII and we do not accept such a broad and unusual
interpretation today.
Some recent decisions contradict the congressional intent of Title VII. In Macy v. Holder,
the EEOC changed its earlier position and determined that gender identity discrimination claims
are actionable as sex discrimination under Title VII. No. 0120120821, 2012 WL 1435995
(E.E.O.C. April 20, 2012). In that case, a transgender woman who was a police detective was not
hired for an agency position because of her transgender identity; the E.E.O.C. determined the
employer’s decision was discriminatory. Id. In 2015, the Eastern District Court of Michigan
permitted the EEOC to bring a Title VII sex discrimination claim on behalf of a transgender
woman funeral director who was fired by her employer after transitioning. EEOC v. R.G. & G.R.
Harris Funeral Homes, 2015 U.S. Dist. LEXIS 52016 (E.D. Mich. Apr. 21, 2015). However,
both of these cases expressly contradict the Legislature’s intent to narrowly interpret sex
discrimination on the [*16] basis of biological sex. Transsexualism was not a consideration when
13
Title VII was established. These incorrect decisions repudiate Title VII’s legislative history,
focusing on biological sex, and Congress’s failure to approve any amendment to the statute for
this purpose. The EEOC’s attempt to expand Title VII is not a legitimate extension of the statute.
The above cases make clear that Title VII does not prohibit sex discrimination because of
transgender identity. Here, Rite was hired as a man, but now identifies as a woman. In 2014, the
Plaintiff started receiving hormone replacement therapy and began dressing as a woman. She
also changed her name from “Eric” to “Erika” to corroborate her gender transition. Rite was
working in a position that required a lot of personal contact, the building of personal
relationships, and one on one communications with individuals who might become customers or
investors in Beetz. Title VII does not prohibit Young from taking into account—if in fact he
did—what effect Rite’s transition might have on these crucial relationships and whether it might
have a detrimental effect on the company. Young made an executive decision to promote another
employee to Executive Distributor position based on performance and experience. Given
Young’s experience, position and familiarity with Beetz, the court must defer to his business
decision to select the person he had determined was best-suited to sustain the [*17] brand of his
company. The Plaintiff continued to remain employed at Beetz in a lateral transfer, while she
was also permitted to present her female identity. Because Title VII does not prohibit
discrimination based on gender identity, Rite’s Title VII claim must be denied.
B.
FMLA Claim
The second issue is whether gender dysphoria qualifies as a “serious health condition”
under the Family Medical Leave Act of 1993, thus giving Erika Rite a right to take unpaid, job
protected leave for her gender reassignment procedure. To resolve this case of first impression,
this court must determine whether the definition of “serious medical condition” contained in
14
Section 825.113 of the FMLA encompasses “gender dysphoria,” and whether the procedure she
underwent was medically necessary.
1. The Family Medical Leave Act
The FMLA was enacted in 1993 to assist employees in meeting their work
responsibilities when faced with the challenge of caring for themselves or a family member with
a “serious health condition.” The FMLA allows eligible employees7 to take unpaid, job-protected
leave, or to substitute paid leave for up to 12 workweeks within a 12-month period, because of
the birth of a child, the placement of a son or daughter with the employee for adoption or foster
care, the need to care for a spouse, parent, or child with a “serious health condition,” or the need
to care for one’s [*18] own “serious health condition.” 29 U.S.C. § 2612 (2009). “The FMLA
‘creates a private right of action [for an employee] to seek both equitable relief and money
damages against any employer’… should that employer ‘interfere with, restrain, or deny the
exercise of’ [the employee’s] FMLA rights.” Tully Boone v. N. Shore-Long Island Jewish Hosp.
Sys., 588 F. Supp. 2d 419, 423 (2008). Damages include, but are not limited to, reimbursement
for monetary loss, attorney’s fees, and court costs. 29 U.S.C. § 2617(a) (1) (A) (2008).
In order to have leave covered by the FMLA, a plaintiff must establish that she was an
eligible employee under FMLA guidelines. Id. at § 2612(a)(1). Here, there is no dispute that the
Plaintiff was eligible for FMLA leave if she had a “serious health condition” for which a leave
for treatment was necessary. There is also no question that the employer is subject to the FMLA.
Defendant contends that Plaintiff does not qualify for FMLA leave because Plaintiff’s diagnosis
of gender dysphoria does not qualify as a “serious health condition” for which this procedure
7
An eligible employee is one who “(1) has been employed by the employer for at least 12 months, and (2) has been
employed for at least 1,250 hours of service during the 12-month period immediately preceding the
commencement of the leave.” The employee must be “employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite.” 29 CFR §825.110 (2013).
15
was necessary.
a. Serious Health Condition
The FMLA defines “serious health condition” as an illness, injury, impairment or
physical or mental condition that involves inpatient care or continuing treatment by a health care
provider. 29 U.S.C. § 2611(11). Because Plaintiff received both inpatient care and continuing
treatment by a health care provider, the question here is whether that treatment was precipitated
by a serious health condition. Id.
i. Inpatient Care
The Department of Labor (“DOL”) [*19] regulation interprets the FMLA to define
“inpatient care” as “an overnight stay in a hospital, hospice, or residential medical care facility,
including a period of incapacity…or any subsequent treatment in connection with such inpatient
care.” 29 C.F.R. § 825.114 (2013). “Incapacity” is defined as the “inability to work, attend
school or perform other regular daily activities due to the serious health condition, treatment
therefore, or recovery therefrom.” Id.
ii. Continuing Treatment by a Health Care Provider
The Department of Labor also established requirements for a condition that involved
“continuing treatment by a health care provider.” Id. With some exceptions, continuing treatment
involves either (1) a period of incapacity of at least three consecutive days; and (2) treatment two
or more times by a health care provider; or (1) a “chronic serious health condition” (2) that
results in a period of incapacity. “Incapacity” is defined as an “inability to work, attend school or
perform other regular daily activities due to the ‘serious health condition,’ treatment therefor, or
recovery therefrom.” Id. Under the DOL regulations, the plaintiff “must show that she suffered a
‘period of incapacity of more than three consecutive calendar days and that she received
16
continued, supervised treatment relating to the same condition.” Schaar, 598 F.3d at 159.
2. Department of Labor Regulations
The Secretary of Labor (the “Secretary”) issues regulations under Congress’ directive
that are “necessary to carry out” the FMLA. 29 U.S.C.A. § 2654 (1993). Considerable weight
must be given to the Secretary’s judgment [*20] that a particular regulation of the FMLA fits
within the constraints of the statute. See Batterton v. Francis, 432 U.S. 416, 426 (1977). While
deference is owed to the Secretary, a regulation does not control if it is found to be “arbitrary,
capricious, or manifestly contrary to the statute.” Chevron U.S.A. v. Nat’l Res. Def. Council,
Inc., 467 U.S. 837, 844 (1984). To determine whether the Secretary used proper authority when
issuing the regulations, we must examine the Act itself to see if it can be viewed “as a
symmetrical and coherent regulatory scheme.” Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 86 (2002) (citing Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995)).
a. Statutory Interpretation
When construing a statute in a case of first impression, courts examine the text of the
statute itself followed by looking at the legislative history and interpretations of administrative
agencies to help determine Congress’s intent. See Chevron, 467 U.S. at 842–43. The text of the
FMLA is silent as to whether gender dysphoria is covered under the definition of “serious health
condition.” Furthermore, the DOL interpreted “serious health condition” broadly. The Secretary
lists certain ailments that should not ordinarily qualify as “serious health conditions.” 29 C.F.R. §
825.113 (2013). Those ailments include the common cold, the flu, earaches, and upset stomachs.
Id. Although the list provides examples of ailments that do not qualify as “serious health
conditions,” the Secretary notes that the intent of the statute was not to be a per se list of rule
[*21] exclusions, and instead was to only provide guidance as to what qualifies as a “serious
17
health condition.” PETERA.SUSSER&DAVIDB.BERRY,FAMILYANDMEDICALLEAVEHANDBOOK(2009).
The Supreme Court has never interpreted the FMLA’s definition of a “serious health
condition.” Other courts have addressed what qualifies as a “serious health condition.”
Bonkowski v. Oberg Indus, Inc., 787 F.3d 190 (3d Cir. 2015) (discussing whether the plaintiff’s
overnight stay in a hospital was sufficient to satisfy the “inpatient care” requirement needed to
establish plaintiff’s “serious health condition”); Darst v. Interstate Brands Corp., 512 F.3d 903
(7th Cir. 2008) (addressing whether the plaintiff established a genuine issue of fact regarding
whether treatment for alcoholism was enough to qualify as a “serious health condition”);
Bumgamer v. Grafco Indus., LP, F. Supp. 2d 1052 (S.D. Iowa 2008) (addressing whether the
plaintiff’s head injury was a “serious health condition” and what Congress had in mind when
enacting the FMLA).
However, courts have never addressed the issue of whether gender
dysphoria is deemed to be a “serious health condition” in that an employee diagnosed with
gender dysphoria may seek FMLA leave to obtain gender reassignment surgery.
To determine whether gender dysphoria qualifies as a “serious health condition,” we look
to the facts alleged within Plaintiff’s complaint. Plaintiff alleges that she suffered various
symptoms as a result of her gender dysphoria. Those symptoms included feeling alone,
depression, anxiety, withdrawing from social interaction, not wanting to live as the sex she was
assigned at birth, and wishing to rid herself of her male anatomy. She does not allege that her
gender dysphoria was physically disabling or that it prevented her from performing her job.
Although courts have not ruled on the issue at hand, there have been several decisions
regarding other illnesses and conditions with comparable symptoms to those of gender
dysphoria. Pivac v. Component Serv. & Logistics, Inc., 570 Fed. Appx. 899 (11th Cir. 2014)
(holding that an employee failed to demonstrate a “serious health condition” after seeking
18
treatment for anxiety and depression, and after returning to work less than two weeks later
without [*22] restriction); Chandler v. Specialty Tires of Am. (Tennessee) Inc., 283 F.3d 818
(6th Cir. 2002) (finding that an employee’s hospitalization for severe depression was sufficient to
qualify as a “serious health condition” under the FMLA); Vasconcellos v. Cybex Intern., 962 F.
Supp. 701 (D. Md. 1997) (holding that the employee’s symptoms, which included fright,
nervousness, and fatigue, were consistent with a “serious health condition”); Stubl v. T.A. Syst.,
Inc., 984 F. Supp. 1075 (E.D. Mich. 1997) (finding that an employee’s visit with a physician to
help him cope with his son’s suicide was sufficient to constitute a “serious health condition”).
Defendant claims that Plaintiff’s allegation is foreclosed by these decisions, including Barker v.
Rooms to Go Furniture Corp., 375 Fed. Appx. 966 (11th Cir. 2010). This Court agrees.
In Barker, the Eleventh Circuit found that an employee who suffered from anxiety did not
suffer a “serious health condition” under the FMLA, so as to sustain his interference and
retaliation claim against his employer. Id. at 968. Mr. Barker produced evidence of episodes of
his anxiety, which required him to take breaks from work. Id. However, he did not testify that
there were any periods in which he was unable to complete his work. Id. The court found that the
plaintiff’s testimony regarding these anxiety episodes, requiring him to take breaks from work,
were not enough to demonstrate incapacity sufficient to [*23] meet the FMLA definition. Id.
Other rulings have yielded similar outcomes. Hurley v. Kent of Naples, Inc., 746 F.3d
1161 (11th Cir. 2014) (holding that the employee’s request for leave due to depression and
anxiety did not qualify for FMLA leave even though medically beneficial); Caskey v. ColgatePalmolive Co., 535 F.3d 585 (7th Cir. 2007) (holding that the employee’s general testimony that
her depression and anxiety were serious was insufficient to raise a genuine issue of material fact
and did not entitle her to medical leave under FMLA); Smith v. Wynne, 494 Fed. Appx. 867
19
(10th Cir. 2012) (holding that the employee’s testimony of three or four outpatient visits for
treatment of anxiety, depression and situational stress were insufficient to demonstrate a “serious
health condition”); Boyd v. State Farm Ins. Co., 158 F.3d 326 (5th Cir. 1998) (holding that the
employee’s leave due to stress and anxiety did not constitute protected leave under the FMLA
because an expert’s testimony, mere credentials, and subjective opinion were insufficient).
Moreover, several courts have discussed gender dysphoria outside of the FMLA context
and within the prison context, which we find useful in guiding our decision today. In Kosilek v.
Spencer, the First Circuit held that the Department of Corrections’ decision not to provide the
plaintiff with gender reassignment surgery did not violate the Eighth Amendment. 774 F.3d 63
(1st Cir. 2014) (holding that the inmate was not sufficiently harmed by the prison’s refusal to
treat her gender dysphoria). Kosilek believed that [*24] she was a female trapped in a male’s
body, a belief she had since the age of three, and as a result of this belief, Kosilek suffered
mental anguish and abuse, and attempted to both kill and castrate herself on multiple occasions.
Kosilek v. Maloney, 221 F. Supp. 2d 156, 158 (D. Mass 2002). While incarcerated, Kosilek filed
a lawsuit alleging that the Department of Corrections violated her Eighth Amendment right to be
free from cruel and unusual punishment. She required that she be permitted to undergo gender
reassignment surgery and that a doctor specializing in gender dysphoria treat her for her disorder.
Id. at 159. The First Circuit concluded that to be covered by the Eighth Amendment, the inmate’s
medical care must be “so unconscionable as to fall below society’s minimum standards of
decency.” Kosilek, 774 F.3d at 96. As the First Circuit stated, “we are not tasked today with
deciding whether the refusal to provide [gender reassignment surgery] is uncompassionate or less
than ideal.” Id. While we acknowledge that the standard under FMLA is not the same as that
under the Eighth Amendment, we find it instructive that the court acknowledged that medical
20
care is needed to alleviate the issues associated with gender dysphoria.
Rite contends that her gender dysphoria diagnosis constitutes a “serious health
condition”, as it required her to undergo gender reassignment surgery to eliminate the discomfort
and distress she experienced. This court disagrees. Rite did not present any evidence to prove
that her gender dysphoria symptoms precluded [*25] her ability to perform her daily
employment activities. Plaintiff continued to work while experiencing her symptoms of gender
dysphoria. She was able to express herself in accordance with her gender identity, and her desire
to present as a woman was not objected to by her employer. Plaintiff’s evidence of depression
and anxiety do not create a genuine issue of fact that her gender dysphoria condition qualifies as
a “serious health condition,” entitling her to protected leave under the FMLA. Although her
gender reassignment surgery did involve inpatient care, it appears to this court that the procedure
constitutes elective surgery, not necessary to cure a “serious health condition.”
We are tasked with deciding whether Rite’s gender dysphoria is so serious as to warrant
medically necessary gender reassignment surgery. Today we hold that it does not.
IV. CONCLUSION
This court concludes, as a matter of law, that Title VII does not prohibit discrimination
that is alleged on the basis of one’s transgender identity or gender transition. Thus, Plaintiff does
not have an unlawful employment practice claim against Beetz, Inc., and is not entitled to relief
under Title VII. This court further holds that gender dysphoria does not qualify as a “serious
health condition” under the FMLA. Accordingly, Beetz, as the employer, was not required to
provide FMLA leave for the period of Plaintiff’s surgery and recuperation. Defendant’s motion
to dismiss is hereby granted.
IT IS SO ORDERED.
21
Cite as: 575 F.3d 185 (13th Cir. 2015)
UNITED STATES COURT OF APPEALS
THIRTEENTH CIRCUIT
--------------------------------------------------X
ERIKA RITE,
Docket No. 15-151
Plaintiff - Appellant,
- against BEETZ, INC.,
Defendant - Appellee.
--------------------------------------------------X
December 11, 2015
Opinion of the court delivered by D.ARCHER, U.S. Circuit Court Judge joined by D. CHANG,
and M. GIVHAN.
This case arises on appeal from a decision by the United States District Court of Wagner,
which held that Beetz, Inc.’s (“Beetz”) actions in electing not to promote Erika Rite, even if
based on Rite’s transgender identity, does not constitute discrimination under Section 703 of
Title VII § 703 of the Civil Rights Act of 1964. Thus, Rite is not entitled to relief. Additionally,
the District Court below found that Appellant’s gender dysphoria does not qualify as a “serious
health condition” under the Family and Medical Leave Act of 1993 (the “FMLA”). The court
thereby denied Appellant’s claim under that statute. For the reasons set forth below, we
REVERSE the decision of the District Court on both issues and remand the case for further
proceedings consistent with this decision. We hold that: (1) discrimination resulting from a
person’s gender identity is discrimination “because of sex” under Section 703 of Title VII; and
(2) gender dysphoria qualifies as a “serious health condition” for which gender reassignment
surgery may be medically necessary under the FMLA.
22
I. STANDARD OF REVIEW
The standard of appellate review for a motion to dismiss, pursuant to the Federal Rules of
Appellate Procedure 12(b)(6) is de novo. This court adopts the same standard of review for a
motion to dismiss as set forth in the District Court opinion. When considering a motion to
dismiss, a court must construe the pleadings in a light most [*186] favorable to the plaintiff and
accept all well-pleaded factual allegations as true. Evans-Marshall v. Bd. of Educ., 428 F.3d 223,
228 (6th Cir. 2005); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (requiring a plaintiff
to bring forth "enough facts to state a claim to relief that is plausible on its face").
II. DISCUSSION
A. Title VII Unlawful Employment Discrimination Claim
In our society, the understanding of gender and identity has undergone a huge shift since
the passing of Title VII in 1964. People have become more cognizant of the mental and
emotional dichotomy associated with individuals who do not fit the traditional characteristics of
what it means to be either male or female. In the seminal case of Price Waterhouse v. Hopkins,
the Supreme Court declared that sex-stereotyping was a form of sex-based discrimination. 490
U.S. 228, 295 (1989). An employer cannot adversely act or make a decision against an employee
simply because she does not conform to female stereotypes and is considered too “abrasive” or
“masculine,” or he does not conform to masculine stereotypes and is mild-mannered with
“feminine” tendencies. Id.
In Price Waterhouse, an employer gave its employee, Ann Hopkins, negative
performance evaluations because the employer believed, based on sex-stereotyped constructs,
that she did not behave in a way expected of a woman. Id. In essence, Price Waterhouse viewed
Hopkin’s non-conformance to the traditional female role as a negative job performance.
23
However, the Court concluded that an employer may not hold female employees to a different
standard than male employees [*187] based on stereotyped expectations; an employer certainly
may not fail to promote a woman employee or fail to make her a partner because of that lack of
conformity to expected gender norms. Price Waterhouse’s action in this regard was deemed
unlawful under Title VII. Id. at 249.
The purpose of Title VII was to eliminate injustice when an employer treated employees
differently based on their membership in a certain class or their having certain characteristics and
traits, while at the same time preserving the employer’s freedom of choice. Id. at 239. Although
there is little legislative history on the incorporation of sex and its meaning in Title VII, the final
bill, which both congressional houses approved, explicitly listed sex as a forbidden ground for
discrimination. Considering the text of the statute, Section 703 prohibits employers from taking
into account one’s sex when making employment decisions. 42 U.S.C. § 2000e-2(a) (1964). In
light of the significant transformations in our society’s ability to define and understand sex and
gender, it is inaccurate to limit the text solely to biological sex.
Gender nonconformity is not a permissible factor for an employer to take into account
when making employment related decisions. See Smith v. City of Salem, 378 F.3d 566 (6th Cir.
2004) (permitting a firefighter transgender woman who was discharged after transitioning to
bring a Title VII discrimination claim); see also Glenn v. Brumby, 663 F.3d 1312 (11th Cir.
2011). In Glenn v. Brumby, Glenn was terminated as an editor [*188] at the state of Georgia’s
Office of Legislative Counsel once he informed his employer of his intent to transition to be a
woman after being diagnosed with Gender Identity Disorder. Id. at 1314. The court held that
imposing employment consequences because of a transition in gender identity was a form of sex
discrimination, invoking heightened scrutiny under the Fourteenth Amendment. Id. at 1321. An
24
employee not conforming to the sex assigned at birth does not constitute grounds for an
employer to refuse to hire, to demote, or to terminate an employee.
More recently, a number of federal courts have recognized gender identity and
transgender discrimination as prohibited discrimination under Title VII. In Equal Emp’t
Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., the EEOC asserted that the
funeral home’s decision to terminate a transgender Funeral Director/Embalmer was motivated by
“sex-based considerations” in violation of Title VII. 2015 U.S. Dist. LEXIS 52016 (E.D. Mich.
Apr. 21, 2015). There, the court in the Eastern District of Michigan noted that because the
Funeral Director/Embalmer did not conform to the funeral home’s “sex or gender-based
preferences, expectations or stereotypes” and identified as a transgender woman, she could
prevail on a sex-stereotyping gender discrimination claim under Title VII. Id. at 12. The court
further stated that "[i]n the context of sex stereotyping, an employer who acts on the basis of a
belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of
[*189] gender." Id. at 14 (citing Price Waterhouse, 490 U.S. at 250). Thus, gender nonconformity has become a part of sex discrimination. Id. at 18.
This court should defer to the expertise of the EEOC given its recent shift in agency
rulings regarding Title VII claims for sex discrimination. In Macy v. Holder, a state agency in
California rescinded its job offer to a police detective, who identified as a transgender woman,
once the detective informed the agency of her transitioning period. Appeal No. 0120120821,
2012 WL 1435995 (EEOC, April 12, 2012). Here, the court relied on circuit court decisions that
defined “sex” for the purpose of discrimination claims to encompass both biological sex and
gender. See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000)(holding that a state prison
guard is not entitled to qualified immunity for attempting to rape a transgender woman inmate
25
because VAWA protects transgender women from gender-motivated violence); Smith v. Salem,
378 F.3d 566, 572 (6th Cir. 2004)(finding that suspending a firefighter, who was a transgender
woman, was an adverse employment action that satisfied prima facie standards for an
employment discrimination and retaliation claim under Title VII); Glenn, 663 F.3d 1312
(holding that terminating an employee because of a medical condition, such as Gender Identity
Disorder, violates the Equal Protection Clause of the Fourteenth Amendment). The court in Macy
stated that Title VII must also include gender discrimination because if it were limited only to
biological sex, gender-based disparate treatment would be [*190] limited to preference for a man
or woman; however, the statute’s protections are more expansive than covering biological sex.
Macy, 2012 WL 1435995, at *5. The EEOC acknowledges the historical roots of Title VII while
also being well informed of the recent developments in sociology to include gender. The
EEOC’s operative focus is to prevent any employer from classifying individuals in a way that
would deprive that person of an employment opportunity. Older court decisions that narrowly
limit Title VII to biological sex contradict the spirit of Title VII: to prevent employment
decisions that adversely impact an individual because of particular characteristics. Transgender
persons are included in this group on the basis of sex.
Turning to the case on appeal, the decision to transfer Rite to the Graphic Design
Department was an adverse act based on her gender identity. Rite has diligently worked for
Beetz for ten years, where she has excelled at her duties. Beetz considered every aspect of Rite’s
performance to be exceptional and ideal for a higher executive position. It was not until Rite
started expressing herself as a woman that Beetz’s CEO, Young, retreated from Rite. It is
reasonable to infer from the factual allegations that Rite’s more feminine appearance did not
align with Young’s traditional views of gender. Rite’s gender nonconformity was a motivating
26
factor in Young’s decision to transfer Rite to an employment position with significantly less
visibility. Just as Rite was finding a bit of happiness, [*191] Beetz showered her in shame and
attempted to hide her in a department where she would no longer interact with clients or
investors in person and would rarely be seen by co-workers. Although the court is in no position
to act as Beetz and make an employment decision about Rite, we possess the authority to protect
her from discrimination because of her transgender identity.
Accordingly, we hold that an individual who identifies as transgender, or gender
nonconformity, may not be discriminated against on the basis of their gender identity under Title
VII. Beetz’s actions in transferring Rite therefore may constitute employment discrimination as
prohibited by Title VII and her complaint should not have been dismissed.
B. FMLA Claim
Rite argues that gender dysphoria, particularly when accompanied by anxiety and
depression, constitutes a “serious health condition,” which entitled her to take unpaid leave under
the FMLA to undergo gender reassignment surgery. She contends that gender dysphoria has been
recognized as a “serious health condition” in other contexts of the law and should likewise be
recognized as a “serious health condition” under the FMLA. Rite cites to several cases in which
courts have addressed issues involving gender dysphoria and whether gender reassignment
surgery was medically necessary. Beetz contends that neither this court nor the U.S. Supreme
Court has ever recognized gender dysphoria as a “serious health condition.” Appellee further
argues that even if gender dysphoria exists, it does not rise to the level of being a “serious health
condition.”
On June 13, 2014, [*192] the U.S. Office of Personnel Management (“OPM”) issued a
letter to all insurance companies participating in the Federal Employee Health Benefits Program
27
(“FEHBP”) discussing treatment for transgender persons meeting the criteria for a gender
dysphoria diagnosis. John O’Brien, Covered Benefits for Gender Transition Serv. (U.S. Office of
Pers. Mgmt.), June 13, 2015. This letter reinforced the need for transgender persons to receive
benefits consistent with their “individual and medical status before and after gender transition.”
Id. Before this letter was issued, insurance carriers were not required to provide federal employee
benefits for gender transition procedures for federal employees. However, this letter, when filed,
lifted the ban on all coverage related to gender transition under the FEHBP. On June 23, 2014,
the OPM issued another letter informing insurance companies covering federal employees they
could not “have a general exclusion of services, drugs, or supplies related to gender transition or
‘sex transformation.’” John O’Brien, Covered Benefits for Gender Transition Serv., (U.S. Office
of Pers. Mgmt.), June 23, 2015. The letter was sent because of the “evolving professional
consensus that treatment may be medically necessary to address a diagnosis of gender
dysphoria.” Id. Under this directive, participants in FEHBP are covered for gender reassignment
surgery and other related services. This letter shed light on an earlier letter issued by OPM on
June 13, 2014 that discussed treatment for transgender persons who meet the criteria for a gender
dysphoria diagnosis.
The federal government’s mandate for transition-related coverage for FEHBP
participants [*193] demonstrates the shift toward eliminating all forms of discrimination against
transgender persons. The time came for OPM to address gender dysphoria in federal insurance
programs and the coverage allowed to transgender persons. Although the OPM policy does not
directly touch on FMLA provisions and “serious health conditions,” it would support a similar
shift in the FMLA context towards recognizing gender dysphoria as a “serious health condition”
in both government and private employment.
28
While the OPM letters do not explicitly discuss whether gender dysphoria constitutes a
"serious health condition,” gender dysphoria has been addressed in recent years by various
courts. Norsworthy v. Beard, 74 F. Supp. 3d 1100 (N.D.Ca. 2014); O’Donnabhain v. Comm’r of
Internal Revenue, 134 T.C. 34 (2010). In February 2010, the U.S. Tax Court discussed whether a
transgender woman was permitted to deduct amounts paid for hormone replacement therapy,
gender reassignment surgery, and breast augmentation surgery as a medical care expense under
Section 213 of the Internal Revenue Code of 1986. O’Donnabhain, 134 T.C. at 34. In
O’Donnabhain, the court ruled that the costs of hormone replacement treatment and gender
reassignment surgery may be deducted from gross income as medical expenses for the treatment
of gender identity disorder, now known as gender dysphoria.8 Id. The court held that hormone
replacement therapy and gender reassignment surgery may be medically necessary for
transgender persons. Id.
Further, courts have looked at gender dysphoria in the prison context, [*194] as mention
in the District Court opinion. In Norsworthy, the Northern District of California held that a
plaintiff’s rights were violated through prison officials’ indifference to her serious medical need
for gender reassignment surgery. 74 F. Supp. 3d at 1113. Here, the court described the plaintiff’s
need for gender reassignment surgery as an “ongoing anguish.” Id.
The District Court cites the Kosilek v. Spencer court’s discussion on gender dysphoria in
the prison context. Rite v. Beetz, Inc., 585 F. Supp.3d 1, 23 (S.D. Wgr. 2015) (citing Kosilek v.
Spencer, 891 F. Supp. 2d 226 (D. Mass. 2012), aff’d, 740 F.3d 733 (1st Cir.), rev’d, 774 F.3d 63
(1st Cir. en banc, 2014), cert. denied, 135 S. Ct. 2059 (May 4, 2015)). However, this court is not
persuaded by the First Circuit’s decision and finds the District of Massachusetts opinion more
8
The current term “gender dysphoria” will be used throughout this order when referring to the prior term “gender
identity disorder.”
29
convincing. In Kosilek, the District Court granted the plaintiff’s claim and required
Massachusetts Department of Corrections to provide gender reassignment surgery to a prison
inmate. 889 F. Supp.2d 226 (holding that plaintiff’s gender dysphoria constituted a serious
medical need that triggered Eighth Amendment protection). In Kosilek, the court discussed
gender reassignment surgery and described the procedure as the only adequate treatment for the
plaintiff’s serious medical need. Id. at 230. The court further concluded that gender reassignment
surgery is becoming more widely recognized. Id. at 230 (citing O’Donnabhain v. Comm’r of
Internal Revenue, 134 T.C. No. 4 (2010) and Fields v. Smith, F.3d 550 (7th Cir. 2011) (holding
that a state statute prohibiting [*195] gender reassignment surgery for prisoners violated the
Eighth Amendment because such treatment may be medically necessary)). As gender dysphoria
continues to be recognized as a serious medical need in prison litigation, gender dysphoria
should similarly be recognized in this context as a “serious health condition” justifying medical
leave.
These recent holdings support a new standard for interpreting FMLA discrimination
claims of transgender persons, which includes recognizing gender dysphoria as a “serious health
condition” and gender reassignment surgery as a necessary treatment, if supported by diagnosis
in a particular case. These decisions are indicative of the path this country is taking to eliminate
perpetual stereotypes that lead to prejudices and discrimination against those within the
transgender community.
REVERSED and REMANDED for proceedings consistent with this opinion.
30
APPENDIX A
Beetz, Inc.
Employee Performance Review
Employee Information
Name
Eric Rite
Employee ID
00003072016
Job Title
Lead Sales Consultant
Date
April 14, 2013
Department
Sales
Manager
Juwan M. Montalvo
Review Period
01/01/2013 – 04/01/2013
3 = Satisfactory
4 = Good
Ratings
1 = Poor
2 = Fair
5 = Excellent
Job Knowledge
Comments
Work Quality
Comments
Attendance/Punctuality
Comments
Initiative
Comments
Usually, Eric is eager to start a new project or assignment but he seems distracted lately. So, I push him to start new work.
Communication/Listening Skills
Comments
Dependability
Comments
Overall Rating (average the rating numbers above)
4.1
Evaluation
ADDITIONAL COMMENTS
Eric has always been one of our most valued employees. His work is still good, but he appears distracted and distraught.
Not sure what may be going on with him, but talked to him about how valued his work is. Lately, he seems to be getting
better but can still improve on his engagement and initiative with the department.
GOALS
Improve level of engagement and initiative with department projects and clients.
(as agreed upon by employee
and manager)
Verification of Review
By signing this form, you confirm that you have discussed this review in detail with your supervisor. Signing this form does not necessarily indicate that
you agree with this evaluation.
Employee Signature
Date
04/13/2013
Manager Signature
Date
04/13/2013
31
Beetz, Inc.
Employee Performance Review
Employee Information
Name
O’Shay Jackson
Employee ID
00007192016
Job Title
Sales Consultant
Date
September 10, 2013
Department
Sales
Manager
Juwan M. Montalvo
Review Period
07/01/2013 – 09/01/2013
3 = Satisfactory
4 = Good
Ratings
1 = Poor
2 = Fair
5 = Excellent
Job Knowledge
Comments
O’Shay has been struggling lately with learning new computer program to help organize sales and clients. Several errors.
Work Quality
Comments
Attendance/Punctuality
Comments
Initiative
Comments
O’Shay is always eager to start new projects and meet new clients.
Communication/Listening Skills
Comments
Dependability
Comments
Overall Rating (average the rating numbers above)
3.5
Evaluation
ADDITIONAL COMMENTS
O’Shay is doing a great job. Work wise, he’s eager and excited but occasionally not thorough with data entry. In August,
he got into an argument with a co-worker in the lunchroom. It did not escalate into a physical altercation, but he was very
heated. I warned both him and the other co-worker about their behavior. Both took accountability and apologized. Since
then, O’Shay has been on his best behavior.
GOALS
Improve data entry and review skills.
(as agreed upon by employee
and manager)
Verification of Review
By signing this form, you confirm that you have discussed this review in detail with your supervisor. Signing this form does not necessarily indicate that
you agree with this evaluation.
Employee Signature
Date
09/11/2013
Manager Signature
Date
09/11/2013
32
APPENDIX B
BEETZ, INC. LEAVE POLICY
SICK LEAVE
Regular full-time employees accrue paid sick leave at the rate of eight (8) hours per calendar month of
continuous employment. Regular part-time employees, who are regularly scheduled to work more than 20 hours
per week, accrue paid sick leave on a pro rata basis. Temporary employees are not eligible for paid sick leave
benefits.
Sick leave may be used for any of the following purposes:
•
•
•
•
•
•
•
Personal illness or incapacity of the employee;
Forced quarantine of the employee by a public health official;
To care for the employee’s dependent children under age 18 who are ill;
To attend the birth of the employee’s child;
Use of a prescription drug that impairs job performance or safety;
Medical or dental appointments of the employee or dependent children under the age of 18, when
such appointments cannot reasonably be scheduled during off-duty time; or
For any purpose described in the Family Care policy, set forth below.
Sick leave may be coordinated with certain other leaves (for example “Family and Medical Leave,” Policy
below). Employees may be required to provide medical or other documentation to verify the appropriate use of
sick leave. A doctor’s note will typically be required when an employee is absent for three or more consecutive
days, or in other situations as deemed appropriate by Beetz, Inc. (hereinafter “Beetz”). Excessive tardiness or
absences (other than approved FMLA leave, described below) may lead to disciplinary action, which may result
in employee termination.
FAMILY AND MEDICAL LEAVE
Recognizing the importance of family, and out of concern for the well-being of its employees, Beetz’s family
and medical leave program enables employees to take time off, under certain conditions, for health reasons or to
care for family members. This policy will be administered in accordance with the federal Family and Medical
Leave Act of 1993 (“FMLA”). A notice entitled “Employee Rights and Responsibilities Under the Family and
Medical Leave Act” is posted on the bulletin board in the Employee’s Lounge on the 5th Floor and is provided
to employees upon hire in the “Beetz, Inc. Employee Handbook.” Nothing in this policy affects or supersedes
any federal or state law or collective bargaining agreement that may provide greater entitlements to medical or
family leave than those set forth in this policy.
Eligibility. To be eligible for leave under this family and medical leave policy, an employee must have been
employed by Beetz for at least 12 months, must have worked at least 1,250 hours in the preceding 12 months,
and must work at a location where at least 50 employees are employed by Beetz within 75 miles.
Leave Entitlement. An eligible employee may request up to 12 workweeks of FMLA leave per “leave year” for
one or more of the following reasons:
33
•
•
•
•
To care for the employee’s child upon birth, or to care for a child upon the child’s placement with
the employee for adoption or foster care;
To care for a spouse, son, daughter or parent who has a serious health condition;
For personal care, if the employee has a serious health condition that makes the employee unable to
perform the essential functions of the position (including incapacity due to pregnancy, prenatal
medical care or childbirth); or
For a “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter, or
parent is a covered military member who is on active duty, or has been notified of an impending call
to active duty in support of a contingency operation. Covered military members are members of the
National Guard or Reserves, and certain retired military service personnel, who have been called to
active duty or notified of an impending call to active duty. Qualifying exigencies are generally
activities related to the active duty or call to duty, including attending certain military events,
arranging for alternative childcare, addressing certain financial and legal arrangements, attending
certain counseling sessions and attending post-deployment reintegration briefings.
Beetz defines leave year as the rolling 12-month period measured backward from the date an employee uses any
FMLA leave. FMLA leave for birth or placement for adoption or foster care must conclude within 12 months of
the birth or placement. An eligible employee may also take up to 26 weeks of leave during a single 12-month
period to care for an injured service member who is the employee’s spouse, parent, child or next of kin. A
“covered servicemember” is a current member of the Armed Forces, including National Guard or Reserves
members, who had a serious injury or illness incurred in the line of duty on active duty that may render the
servicemember medically unfit to perform his or her duties for which the servicemember is undergoing medical
treatment, recuperation, therapy, or is in outpatient status, or is on the temporary disability retired list. For
purposes of this kind of leave, the 12-month period begins the first day the employee takes leave. The combined
total of leave for all purposes described in this policy may not exceed 26 weeks in the applicable leave year.
Serious Health Condition. A serious health condition is an illness, injury, impairment or physical or mental
condition involving the following:
•
•
•
•
A period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a
hospital, hospice or residential medical care facility;
A period of incapacity of more than three consecutive, full calendar days from work, school, or other
regular daily activities that also involves continuing treatment by (or under the supervision of) a
health care provider;
A period of incapacity due to pregnancy or for prenatal care; or
A period of incapacity or treatment due to a chronic serious health condition, for a permanent or
long-term condition for which treatment may not be effective, or to receive multiple treatments for
restorative surgery after an accident or injury or for a condition that would likely result in an
incapacity of more than three full, consecutive calendar days in the absence of medical treatment
(i.e., chemotherapy for cancer or dialysis for kidney disease).
Intermittent or Reduced Work Schedule Leave. If the FMLA leave is because of the employee’s own serious
health condition or to care for a family member, the employee may take the leave intermittently or on a reduced
work schedule if medically necessary. Eligible employees may also take FMLA leave on an intermittent or
reduced schedule basis when necessary because of a qualifying exigency arising from a family member’s
military service. If FMLA leave is to care for a child after the birth or placement for adoption or foster care,
employees may take their FMLA leave intermittently or on a reduced work schedule only with Beetz’s
permission. Where intermittent leave or reduced-schedule leave is needed for planned medical treatment, an
employee must make a reasonable effort to schedule the treatment so as not to unduly disrupt Beetz’s
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operations. Where an employee needs intermittent or reduced-schedule leave based on planned medical
treatment, Beetz may transfer the employee to an alternative position with equivalent pay and benefits that can
better accommodate such recurring leave.
Notice and Certification. Employees who want to take FMLA ordinarily must provide Beetz with at least 30
days’ notice of the need for leave, if the need for leave is foreseeable. If 30 days’ advance notice is not possible,
notice must be provided as soon as practicable (which is generally the same day or next business day after the
need for leave becomes known). Absent unusual circumstances, employees are required to follow Beetz’s
regular procedural requirements when requesting FMLA leave. When requesting leave, employees must provide
sufficient information for Beetz to determine whether the leave may be FMLA-qualifying, and the anticipated
timing and duration of requested leave. Employees must also inform Beetz if the requested leave is for a reason
for which FMLA leave was previously taken or certified.
When leave is requested in connection with planned medical treatment, the employee must make a reasonable
effort to schedule treatment in order to prevent disruptions to Beetz operations. In addition, employees who
need leave for their own or a family member’s serious health condition must provide medical certification from
a health care provider of the serious health condition. Beetz may require a second or third opinion (at Beetz’s
expense), periodic re-certifications of the serious health condition and, when the leave is for an employee’s own
serious health condition, a certification that the employee is fit to return to work. Employees who need leave for
a qualifying exigency arising from a family member’s military leave must provide a certification confirming the
need for leave.
Beetz may delay leave to employees who do not provide proper advance notice of the foreseeable need for
leave. Beetz also may delay or deny approval of leave for lack of proper certification establishing the need for
leave. Please contact Human Resources to obtain further information and forms relating to FMLA leave
requests.
Job Restoration Upon Return From Leave. Upon return from family and medical leave, an employee will be
entitled to return to the employee’s former position or a position with equivalent pay, benefits and conditions of
employment, unless unusual circumstances have arisen (e.g., the employee’s position or shift was eliminated for
reasons unrelated to the leave). If the employee chooses not to return to work for any reason, the employee
should notify Beetz as soon as possible.
OTHER UNPAID LEAVE
Subject to operational and other considerations, Beetz may grant a leave of absence without pay for an absence
not covered by any other type of leave. Any available accrued leave must be exhausted before an unpaid leave
will be approved. An example of an absence that may qualify is a prolonged illness or medical condition for
which an employee needs reasonable accommodation.
ADMINISTRATIVE LEAVE
On a case-by-case basis, Beetz may place an employee on administrative leave with or without pay for an
indefinite period of time. Administrative leave may be used when in Beetz’s best interests, such as during the
pendency of an investigation.
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APPENDIX C
29 U.S. Code § 2611 - Definitions
As used in this subchapter:
(2) Eligible employee
(A) In general The term “eligible employee” means an employee who has been employed—
(i) for at least 12 months by the employer with respect to whom leave is requested under section
2612 of this title; and
(ii) for at least 1,250 hours of service with such employer during the previous 12-month period.
(B) Exclusions The term “eligible employee” does not include—
(i) any Federal officer or employee covered under subchapter V of chapter 63 of title 5; or
(ii) any employee of an employer who is employed at a worksite at which such employer
employs less than 50 employees if the total number of employees employed by that employer
within 75 miles of that worksite is less than 50.
(C) Determination
For purposes of determining whether an employee meets the hours of service requirement specified in
subparagraph (A)(ii), the legal standards established under section 207 of this title shall apply.
(3) Employ; employee; State
The terms “employ”, “employee”, and “State” have the same meanings given such terms in subsections (c), (e),
and (g) of section 203 of this title.
(4) Employer
(A) In general The term “employer”—
(i) means any person engaged in commerce or in any industry or activity affecting commerce
who employs 50 or more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year;
(ii) includes—
(I) any person who acts, directly or indirectly, in the interest of an employer to any of
the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any “public agency”, as defined in section 203(x) of this title; and
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(iv) includes the Government Accountability Office and the Library of Congress.
(B) Public agency
For purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in
commerce or in an industry or activity affecting commerce.
(5) Employment benefits
The term “employment benefits” means all benefits provided or made available to employees by an employer,
including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational
benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an
employer or through an “employee benefit plan”, as defined in section 1002(3) of this title.
(6) Health care provider The term “health care provider” means—
(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as
appropriate) by the State in which the doctor practices; or
(B) any other person determined by the Secretary to be capable of providing health care services.
(8) Person
The term “person” has the same meaning given such term in section 203(a) of this title.
(9) Reduced leave schedule
The term “reduced leave schedule” means a leave schedule that reduces the usual number of hours per
workweek, or hours per workday, of an employee.
(10) Secretary
The term “Secretary” means the Secretary of Labor.
(11) Serious health condition The term “serious health condition” means an illness, injury, impairment, or
physical or mental condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.
29 U.S. Code § 2612 - Leave requirement
(a) In general
(1) Entitlement to leave Subject to section 2613 of this title, an eligible employee shall be entitled to a total of
12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or
daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
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(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son,
daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of
the position of such employee.
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of
the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or
has been notified of an impending call or order to covered active duty) in the Armed Forces.
****
(4) Combined leave total
During the single 12-month period described in paragraph (3), an eligible employee shall be entitled to a
combined total of 26 workweeks of leave under paragraphs (1) and (3). Nothing in this paragraph shall be
construed to limit the availability of leave under paragraph (1) during any other 12-month period.
****
(c) Unpaid leave permitted
Except as provided in subsection (d), leave granted under subsection (a) may consist of unpaid leave. Where an
employee is otherwise exempt under regulations issued by the Secretary pursuant to section 213(a)(1) of this
title, the compliance of an employer with this subchapter by providing unpaid leave shall not affect the exempt
status of the employee under such section.
(d) Relationship to paid leave
(1) Unpaid leave
If an employer provides paid leave for fewer than 12 workweeks (or 26 workweeks in the case of leave
provided under subsection (a)(3)), the additional weeks of leave necessary to attain the 12 workweeks (or 26
workweeks, as appropriate) of leave required under this subchapter may be provided without compensation.
(2) Substitution of paid leave
(A) In general
An eligible employee may elect, or an employer may require the employee, to substitute any of the
accrued paid vacation leave, personal leave, or family leave of the employee for leave provided
under subparagraph (A), (B), (C), or (E) of subsection (a)(1) for any part of the 12-week period of
such leave under such subsection.
(B) Serious health condition
An eligible employee may elect, or an employer may require the employee, to substitute any of the
accrued paid vacation leave, personal leave, or medical or sick leave of the employee for leave
provided under subparagraph (C) or (D) of subsection (a)(1) for any part of the 12-week period of
such leave under such subsection, except that nothing in this subchapter shall require an employer to
provide paid sick leave or paid medical leave in any situation in which such employer would not
normally provide any such paid leave. An eligible employee may elect, or an employer may require
the employee, to substitute any of the accrued paid vacation leave, personal leave, family leave, or
medical or sick leave of the employee for leave provided under subsection (a)(3) for any part of the
26-week period of such leave under such subsection, except that nothing in this subchapter requires
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an employer to provide paid sick leave or paid medical leave in any situation in which the employer
would not normally provide any such paid leave.
(e) Foreseeable leave
(1) Requirement of notice
In any case in which the necessity for leave under subparagraph (A) or (B) of subsection (a)(1) is foreseeable
based on an expected birth or placement, the employee shall provide the employer with not less than 30 days’
notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph,
except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall
provide such notice as is practicable.
(2) Duties of employee In any case in which the necessity for leave under subparagraph (C) or (D) of
subsection (a)(1) or under subsection (a)(3) is foreseeable based on planned medical treatment, the employee—
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of
the employer, subject to the approval of the health care provider of the employee or the health care
provider of the son, daughter, spouse, parent, or covered service member of the employee, as
appropriate; and
(B) shall provide the employer with not less than 30 days’ notice, before the date the leave is to begin, of
the employee’s intention to take leave under such subparagraph, except that if the date of the treatment
requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
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IN THE
Supreme Court of the United States
SPRING TERM, 2016
DOCKET NO. 16-24
BEETZ, INC.,
Petitioner,
-against-
ERIKA RITE,
Respondent.
On Writ of Certiorari to the Supreme Court of the United States
In response to the appeal by Beetz, Inc. (“Petitoner”) of the judgment of the United States Court
of Appeals for the Thirteenth Circuit, this Court hereby grants review of the above-entitled
matter on the following two issues: 1. Whether Erika Rite, a transgender woman, has a lawful claim and is entitled to
compensatory and punitive damages under Section 703 of Title VII of the Civil Rights
Act of 1964 against Beetz, Inc. for employment discrimination on the basis of sex
discrimination.
2. Whether Erika Rite’s diagnosis of gender dysphoria qualifies as a “serious health
condition” under the Family Medical Leave Act of 1993, thus entitling her to unpaid jobprotected leave to undergo gender reassignment surgery.9
9
Please note that the Court limits the issues to be briefed to the issues on which certiorari has been granted.
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