On August 16, 2022, the federal Court of Appeals in the Fourth Circuit ruled that gender dysphoria is a disability protected by the Americans with Disability Act (ADA). The decision, Williams v. Kincaid, marks the first time a federal appellate court has interpreted whether the long-standing ADA protects transgender individuals from discrimination by public entities providing programs and services.

This decision resolves a dispute over the issue in the lower courts in South Carolina, North Carolina, Maryland, Virginia, and West Virginia. Although the ruling challenged inmate policies in place at the Fairfax County, Virginia prison, the ruling also impacts employers covered by Title I of the ADA and businesses that qualify as places of public accommodation under Title III of the ADA.

The case involved a transgender woman who sued the Fairfax County, Virginia sheriff for housing her in a prison with men. Kesha Williams was initially assigned to live in the women’s section of the prison, but once she identified as transgender to the treating nurse and explained that she experienced gender dysphoria, the nurse started asking questions. Ms. Williams informed the nurse that she had received hormone treatments for the previous 15 years. She also explained she had not had genital surgery, which was important because the prison had a policy requiring inmates to be assigned housing based on their genitalia. As a result, Ms. Williams was housed with the male inmates and required to wear men’s clothing.

Subsequently, Ms. Williams suffered harassment and repeated delays in and missed doses of her hormone medication. The prison also denied her requests for a private shower and for body searches to be conducted by a female deputy. Deputies also refused to address her as a female, instead calling her mister, sir, and similar male terms.

The lower court originally dismissed the lawsuit on the grounds that the ADA excluded “gender identity disorders” from the definition of disability. The Fourth Circuit Court of Appeals reversed that decision and sent the case back to the lower court for further litigation. The Fourth Circuit or the U.S. Supreme Court may take up this case in the future if litigation continues.

In its opinion, the Court ruled that there is a difference between gender identity disorders, which are not covered by the ADA, and gender dysphoria. The first arguably pathologized being trans and is an outdated medical understanding, while the latter is defined as “clinically significant distress” experienced by some but not all transgender people, with symptoms that may include intense anxiety, depression, and suicidal ideation.

The legal effects of the decision are immediate and will directly impact South Carolina employers and businesses that qualify as places of public accommodation under Title III of the ADA. To avoid litigation and potentially significant damages, these businesses should update their policies and practices, including responses to requests for accommodation.

Gaffney Lewis, LLC works directly with employers to ensure they are compliant with the law, including decisions handed down by state and federal courts. Although the legal status of gender dysphoria is continuing to develop, we believe the best approach is one that aligns a company’s policies and practices with standing case law.

Our firm’s Employment Law practice is ready to help your business avoid unnecessary litigation by revising or adopting policies and procedures that comport with the current state of the law. In the event a lawsuit is brought against you, we’re prepared to defend your interests in court and use mediation and other alternative dispute resolution methods to settle matters without the need for trial.

To learn more about this recent decision or our firm’s services, give Gaffney Lewis, LLC a call.

South Carolina appears poised to guarantee public employees the right to decide if they want to obtain the COVID-19 vaccination without the fear of losing employment.

The Senate proposal bans state and local governments and public schools from requiring vaccines for their employers, contractors or students and also says first responders can’t be fired for refusing a COVID-19 shot.

The bill will return to the House for approval or revision. GaffneyLewis will keep you updated on this important issue. Click here for more information.

On January 13, the U.S. Supreme Court granted a request for emergency relief concerning a Covid-19 “vaccine or test” rule that the Occupational Safety and Health Administration (OSHA) was planning to implement. In granting the stay, the Court halted – for now – what was known as the Emergency Temporary Standard (ETS) to be imposed upon companies with 100 or more employees.

The ETS mandated employers with at least 100 employees to require all members of their workforce to either obtain a Covid-19 vaccination or provide weekly proof of a negative Covid-19 test.

It should be noted that the Supreme Court granted emergency relief, which is not a final review of the OSHA rule. In other words, the decision doesn’t necessarily mean the rule will not ultimately be implemented. To the contrary, the decision only stays, or puts on hold, implementation of the rule until the Sixth Circuit Court of Appeals reviews it. After that, it may come back up to the Supreme Court for further consideration.

The 6-3 decision held that the plaintiffs challenging the law were likely to succeed on the merits of their arguments. Plaintiffs argued, and the Court agreed, that OSHA lacks the authority to implement the ETS. The majority determined that while OSHA has power to impose workplace safety rules, it cannot set broad public health policies. Although Covid-19 affects many workplaces, it is not specifically an occupational danger. Allowing OSHA to impose such a rule, the majority decided, would permit the agency to regulate “the hazards of daily living” – something Congress never intended.

Meanwhile, in a separate concurring opinion (that is, an opinion agreeing with the majority but for a different reason), three Justices contended that OSHA violated what’s known as the major questions doctrine. This rule assumes that when an administrative agency, such as OSHA, promulgates a rule that has major economic and social consequences, there must be clear statutory authority to do so. Put another way, the assumption is that Congress would not intend for OSHA to have such broad power unless that power is expressly stated in a statute. Such power is not contained in any statute concerning OSHA.

The three dissenting Justices took a different view. Not only did they believe the challengers were not likely to prevail on the merits of their claim, they held that OSHA is within its authority to require such an emergency standard to prevent workplace illness. Citing the serious danger of Covid-19 to millions of employees, the Justices concluded that OSHA has the power to impose the ETS.

Again, this emergency ruling is not necessarily the final word. Because the issue has been returned to the Sixth Circuit, with another possible review by the Supreme Court, the original rule could be upheld or OSHA might, in light of this decision, devise a more limited rule.

Employers should also be aware that state and local rules may require policies similar to OSHA’s ETS. The Supreme Court decision does not negate or halt those requirements.

Considering all of these factors, employers are advised to consult with knowledgeable legal counsel both as to current Covid-19 requirements and to prepare for possible future policies. At Gaffney Lewis, LLC, we have your business covered. Our employment law attorneys are at the forefront of the latest legal developments that affect the workplace. We’re prepared to advise your company on the best way to comply with laws and regulations concerning Covid-19. Give us a call today to learn more.

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated technical assistance guidance on religious objections/exemptions to mandatory COVID-19 vaccination requirements by employers.  You can read the updated technical assistance guidance at “section L.”

The key updates to the technical assistance are summarized below:

• Employees and applicants must inform their employers if they seek an exception
  to an employer’s COVID-19 vaccine requirement due to a sincerely held religious
  belief, practice, or observance, but employees and applicants and not required to
  use specific language like “religious exemption.”
• Generally, under Title VII, employers should assume that a request for religious
  accommodation is based on a sincerely held religious belief.  If there is an
  objective basis for questioning either the religious nature or the sincerity of a
  particular belief, the employer would be justified in making a limited factual
  inquiry and seeking additional supporting information.
• Title VII requires employers to consider requests for religious accommodations
  but does not protect social, political, or economic views, or personal preferences
  of employees who seek exceptions to a COVID-19 vaccination requirement.
• Employers that demonstrate “undue hardship” are not required to accommodate
  an employee’s request for a religious accommodation.
• Potential accommodations may include remote work or reassignment.

It is important to remember that it is unlawful for an employer to retaliate against an employee for requesting an accommodation based on a religious objection to vaccination.

The EEOC’s guidance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers, employees, and applicants. Please let us know if you need assistance from the GAFFNEYLEWIS LLC employment law team regarding any COVID-19 questions, please reach out to us at (803) 790-8838.

Throughout Breast Cancer Awareness Month, GaffneyLewis, LLC is highlighting ways that you can support individuals in your life who may be impacted by a diagnosis of breast cancer. Unfortunately, the statistics show that most of us know someone who has been diagnosed with breast cancer. Individuals who have walked this path have generously offered the following suggestions for ways you can actively support those who are fighting breast cancer.

1. Cards and Letters: It is always nice to receive a note or card from a friend. For cancer patients, letters can offer emotional support and are a way of communication that allows the patient to receive the support without feeling like they need to craft an immediate reply. Fielding calls and in-person visits can sometimes be difficult when you are feeling physically ill, but letters can provide much-needed comfort during those times and can be revisited long after the treatment concludes.

2. Help for Spouse and Family: Cancer does not only affect the patient, there is a ripple effect across the patient’s life. This diagnosis can transform a family member’s occupation into a full-time caretaker. Having emotional and tangible support for a patient’s family is essential for supporting both the cancer patient and their family. An example of this may be ordering dinner for the family. Another way you can support the patient’s family is by offering to update the family’s circle of friends and supporters on news or updates.

3. Prayers and Affirmations: Knowing that you are on someone’s mind or that people are praying for you or sending you good thoughts is a loving way of sending encouragement and comfort.

4. Soft hats, socks, and blankets: Providing tangible physical comfort items to a cancer patient is a great way to provide support and acknowledge a loved one’s physical needs. A soft blanket can make a hospital room feel more like home, provide comfort, and can be used after their treatment ends.

5. Be present: Oftentimes cancer treatment can feel isolating. The patient’s friends and family cannot relate to the specific struggles the patient faces and may feel awkward asking about it or even connecting to share details about their lives. This social disconnection can compound feelings of isolation. Having friends and family who consistently check in and are emotionally present in the struggle can make the experience better. When in doubt about how you can help someone with cancer, just ask.

GaffneyLewis attorney Amy Gaffney weighs in on the impact of the President’s plan to mandate the vaccine for certain employers.

Click here to watch the full video.