Contributions

Moving Beyond a Symptom-Based Test: Gender Dysphoria and the Family Medical Leave Act

by Josh Thorn 1

Since its pas­sage in 1993, the Fam­i­ly Med­ical Leave Act (FMLA) has been a vital com­po­nent of employ­ee job-pro­tec­tion rights; about 60% of Amer­i­can employ­ees are eli­gi­ble for FMLA pro­tec­tion, and FMLA leave has been uti­lized by employ­ees over two hun­dred mil­lion times since its enact­ment. 2For many employ­ees, the FMLA pro­vides the only job-pro­tect­ed leave they are guar­an­teed, mak­ing it crit­i­cal for many employ­ees with seri­ous med­ical needs. How­ev­er, med­ical knowl­edge has made sig­nif­i­cant advances since the FMLA’s enact­ment, and it is impor­tant to ensure that the FMLA reflects cur­rent knowl­edge of health and gen­der issues. This arti­cle will argue that, with respect to gen­der dys­pho­ria, courts should move beyond a test that pri­mar­i­ly asks whether the health con­di­tion itself was suf­fi­cient­ly phys­i­cal­ly debil­i­tat­ing and thus a “seri­ous health con­di­tion” under the FMLA. Instead, courts should uti­lize a test that mir­rors the FMLA inquiry deal­ing with drug abuse, which asks whether the treatment—rather than the condition—would inca­pac­i­tate the indi­vid­ual from work. Under this analy­sis, gen­der dys­pho­ria should be rec­og­nized as a seri­ous health con­di­tion under the FMLA.

The FMLA was passed in order to pro­tect the abil­i­ty of employ­ees to seek and acquire med­ical treat­ment, and to ensure that indi­vid­u­als with health issues were not forced to choose between work­ing and par­ent­ing, or between work­ing and med­ical treat­ment. 3 The Act, how­ev­er, was not intend­ed to be a uni­ver­sal panacea avail­able for all health issues no mat­ter how minor. 4 The Act spec­i­fies that an employ­ee is only eli­gi­ble for leave under the FMLA in cer­tain cir­cum­stances. 5 To pre­vent employ­ees from seek­ing FMLA leave for mere­ly minor ail­ments, the Act lim­its eli­gi­bil­i­ty to “seri­ous health con­di­tions,” defined as 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,” which pre­vents the employ­ee from work­ing. 6

At first glance, this seems a fair­ly sim­ple and work­able stan­dard. Many health issues are fair­ly eas­i­ly cat­e­go­rized as either “seri­ous” or “non-seri­ous.” A heart attack is seri­ous, the flu is not; a stroke is seri­ous, a stom­ach ache is not; a bro­ken leg is seri­ous, a bro­ken toe is (prob­a­bly) not. 7 How­ev­er, there are huge gaps between these “obvi­ous­ly” seri­ous and non-seri­ous con­di­tions, and the Act is less clear—and gives less guidance—on this gray area between extremes. The Depart­ment of Labor reg­u­la­tions do not offer much more guid­ance: the exam­ples offered of non-seri­ous con­di­tions are obvi­ous ones (“the com­mon cold, the flu, ear aches, upset stom­ach,” etc., as well as cos­met­ic treat­ments). But what about those con­di­tions that do not facial­ly pre­vent an employ­ee from work­ing, but can­not and should not be dis­re­gard­ed like these oth­er minor ail­ments? 8 It is into this mid­dle space that gen­der dys­pho­ria and gen­der reas­sign­ment surgery fall.

*****

Gen­der dys­pho­ria is a severe anx­i­ety dis­or­der; indi­vid­u­als who suf­fer from gen­der dys­pho­ria expe­ri­ence extreme dis­tress due to the dif­fer­ence between the sex they were assigned at birth and their pre­ferred gen­der iden­ti­ty. 9 This man­i­fests as feel­ings of depres­sion and anx­i­ety. While courts have not yet tak­en up the issue of gen­der dys­pho­ria in the con­text of the FMLA, cas­es deal­ing with FMLA claims for depres­sion and anx­i­ety are the clos­est ana­logue. Men­tal health issues do not cause obvi­ous inca­pac­i­ty from work in the same way that phys­i­cal con­di­tions do, but courts have clear­ly rec­og­nized that men­tal health issues can be seri­ous health con­di­tions for the pur­pos­es of the FMLA. 10 Courts have typ­i­cal­ly ana­lyzed such FMLA claims in one of two ways, usu­al­ly ask­ing: (a) whether the con­di­tion itself caused an inca­pac­i­ty for work; or (b) whether treat­ment for the con­di­tion would nec­es­sar­i­ly cause an inca­pac­i­ty for work.

The Depart­ment of Labor (DOL) pred­i­cates a seri­ous health con­di­tion on whether the employ­ee can demon­strate an inca­pac­i­ty for work, 11 and defines inca­pac­i­ty as an, “inabil­i­ty to work, attend school or per­form oth­er reg­u­lar dai­ly activ­i­ties due to the seri­ous health con­di­tion, treat­ment there­fore, or recov­ery there­from.” 12 This broad lan­guage, inclu­sive of both inca­pac­i­ty result­ing from the symp­toms as well as from treat­ment and recov­ery, seems nec­es­sary to accom­plish the FMLA’s pur­pos­es. For exam­ple, a bad knee, by itself, might not pre­vent an employ­ee from work­ing, but knee replace­ment surgery is seri­ous and the sort of seri­ous med­ical treat­ment that ought to be accom­mo­dat­ed, because the con­se­quences of leav­ing the knee untreat­ed can be debilitating.

How­ev­er, claims under the sec­ond and third prongs of the regulation—treatment or recov­ery result­ing in incapacity—force the employ­ee into a cir­cu­lar argu­ment. A seri­ous health con­di­tion requires show­ing that the employ­ee received inpa­tient care 13 or con­tin­u­ing treat­ment 14 that inca­pac­i­tat­ed them from work, and the employ­ee must argue that the inca­pac­i­ty test is sat­is­fied because the inca­pac­i­tat­ing treat­ment was for a seri­ous health condition.

Courts have most often con­duct­ed FMLA analy­sis by ask­ing first whether the con­di­tion itself has caused an inca­pac­i­ty for work, like­ly because this is a sim­ple test to apply and avoids the cir­cu­lar log­ic implied by the sec­ond and third prongs. 15 If the con­di­tion itself was seri­ous enough to pre­vent the employ­ee from being able to work, then it is seri­ous enough for the FMLA’s “seri­ous health con­di­tion” inquiry as well. If the con­di­tion itself was not seri­ous enough to pre­vent the employ­ee from work­ing, then courts show lit­tle hes­i­ta­tion in hold­ing that the employer’s deci­sion to deny FMLA leave was jus­ti­fied. 16

Focus­ing FMLA analy­sis pri­mar­i­ly on whether the symp­toms of men­tal ill­ness­es have been severe enough to cause an inca­pac­i­ty seems log­i­cal in one sense. The sever­i­ty of men­tal ill­ness­es is not obvi­ous­ly or objec­tive­ly vis­i­ble in the same way that the sever­i­ty of a phys­i­cal con­di­tion is, and tying the FMLA analy­sis to the most objec­tive­ly vis­i­ble mark­er avail­able pro­vides a sim­pler test for the courts. How­ev­er, to do so in the con­text of men­tal health con­di­tions, and thus to lim­it FMLA leave for indi­vid­u­als suf­fer­ing from gen­der dys­pho­ria to those cas­es where the dys­pho­ria itself pre­vents the employ­ee from work­ing, is irra­tional giv­en that courts have grant­ed FMLA relief in oth­er cir­cum­stances, such as an employee’s entrance into a drug reha­bil­i­ta­tion program.

Sub­stance abuse can qual­i­fy as a seri­ous health con­di­tion under the FMLA, and FMLA leave can be sought for rehab treat­ment pro­grams. 17 The log­ic of FMLA deci­sions regard­ing drug rehab runs counter to the afore­men­tioned log­ic with respect to men­tal ill­ness­es, because FMLA leave is avail­able for inca­pac­i­ty caused by treat­ment pro­grams, but not for inca­pac­i­ty caused by the symp­toms of the sub­stance abuse itself. 18 This is like­ly for pub­lic pol­i­cy rea­sons: courts want to encour­age employ­ees to seek treat­ment for drug abuse, but might shy away from deci­sions that could be seen as encour­ag­ing drug use. This pol­i­cy rea­son­ing is instruc­tive when con­sid­er­ing how gen­der dys­pho­ria should be treat­ed under the FMLA.

Often when courts reject FMLA claims relat­ed to depres­sion or anx­i­ety, they note that while med­ical treat­ment might be ben­e­fi­cial for the employ­ee, it has not been shown to be med­ical­ly nec­es­sary. 19 But for many indi­vid­u­als who suf­fer from gen­der dys­pho­ria, treat­ment is not mere­ly ben­e­fi­cial, but also nec­es­sary. 20 Just as courts encour­age indi­vid­u­als to seek out drug rehab treat­ment with the under­stand­ing that sub­stance abuse can become crip­pling if left untreat­ed, so too should courts rec­og­nize that gen­der dys­pho­ria can become inca­pac­i­tat­ing, and even life-threat­en­ing if left untreat­ed, even if the gen­der dys­pho­ria itself is not inca­pac­i­tat­ing when the employ­ee applies for FMLA leave. 21 Courts should not encour­age a regime where employ­ees suf­fer­ing from gen­der dys­pho­ria are not eli­gi­ble for FMLA leave until their suf­fer­ing pro­gress­es to a point where they attempt or inflict self-harm. The fact that only some indi­vid­u­als who suf­fer from gen­der dys­pho­ria have an imme­di­ate med­ical need for gen­der reas­sign­ment surgery is not a com­pelling rea­son to facial­ly deny all such FMLA claims. The affir­ma­tions of the employee’s doc­tors that the surgery is nec­es­sary, in addi­tion to the seri­ous­ness of the surgery being planned, should leave courts com­fort­able pre­sum­ing that the employee’s gen­der dys­pho­ria is seri­ous enough to qual­i­fy them for FMLA relief.

*****

When con­sid­er­ing gen­der dys­pho­ria claims, courts would do well to reject a sim­plis­tic analy­sis that looks sole­ly at whether the con­di­tion itself caused inca­pac­i­ty. Courts should rec­og­nize that, because gen­der reas­sign­ment surgery is med­ical­ly nec­es­sary for many indi­vid­u­als, the inca­pac­i­ta­tion result­ing from the proac­tive surgery is suf­fi­cient to sat­is­fy the seri­ous health con­di­tion require­ment for FMLA claims.

Notes:

  1. The fol­low­ing arti­cle is based on my expe­ri­ence in the 2016 Wag­n­er Moot Court Com­pe­ti­tion, spon­sored by New York Law School. The com­pe­ti­tion deals with ques­tions of labor and employ­ment law, and the 2016 case cen­tered on an employ­ment dis­pute between a trans­gen­der female employ­ee and her employ­er. The employ­ee suf­fered from depres­sion and anx­i­ety, and was diag­nosed with gen­der dys­pho­ria, which led her to decide to tran­si­tion and under­go gen­der reas­sign­ment surgery. As a result of her deci­sion, she was passed over for a pro­mo­tion (which was then giv­en to an employ­ee with a less impres­sive per­for­mance record), trans­ferred to anoth­er depart­ment with less vis­i­bil­i­ty, denied FMLA relief for her surgery, and fired dur­ing her recov­ery, because her employ­er had deter­mined that her absences were unex­cused. The ques­tions pre­sent­ed were: (1) does plain­tiff, a trans­gen­der woman, have a law­ful claim under Title VII for employ­ment dis­crim­i­na­tion on the basis of sex dis­crim­i­na­tion? (2) does plaintiff’s diag­no­sis of gen­der dys­pho­ria qual­i­fy as a “seri­ous health con­di­tion” under the Fam­i­ly Med­ical Leave Act, enti­tling her to unpaid job-pro­tect­ed leave to under­go gen­der reas­sign­ment surgery? This Con­tri­bu­tion focus­es on the sec­ond ques­tion.
  2. Fam­i­ly Med­ical Leave Act, Nation­al Part­ner­ship for Women & Fam­i­lies, http://www.nationalpartnership.org/issues/work-family/fmla.html?referrer=http://www.theatlantic.com/sexes/archive/2013/02/the-family-and-medical-leave-act-at-20-still-necessary-still-not-enough/272605/ (last vis­it­ed Oct. 9, 2016, 10:00 PM).
  3. 29 U.S.C. § 2601 (“[T]he lack of employ­ment poli­cies to accom­mo­date work­ing par­ents can force indi­vid­u­als to choose between job secu­ri­ty and par­ent­ing . . . [and] there is inad­e­quate job secu­ri­ty for employ­ees who have seri­ous health con­di­tions that pre­vent them from work­ing for tem­po­rary peri­ods.”).
  4. Id. (lim­it­ing focus to employ­ees with “seri­ous health con­di­tions”).
  5. 29 U.S.C. § 2612 (birth of a child, adop­tion of a child, to care for a fam­i­ly mem­ber with a seri­ous health con­di­tion, a seri­ous health con­di­tion that pre­vents the employ­ee from work­ing, or ser­vice in the Armed Forces).
  6. 29 U.S.C. § 2611.
  7. 29 C.F.R. § 825.113(d) (set­ting forth exam­ples of what, ordi­nar­i­ly, would not qual­i­fy as a seri­ous health con­di­tion, “unless com­pli­ca­tions arise”).
  8. Id.
  9. Memo. from John O’Brien (U.S. Office of Pers. Mgmt.), Let­ter No. 2015-12, Cov­ered Ben­e­fits for Gen­der Tran­si­tion Serv., June 23, 2014 (avail­able at https://www.opm.gov/healthcare-insurance/healthcare/carriers/2015/2015–12.pdf) (not­ing the emerg­ing con­sen­sus among health pro­fes­sion­als that treat­ment is med­ical­ly nec­es­sary for many indi­vid­u­als diag­nosed with gen­der dys­pho­ria).
  10. See, e.g., Chan­dler v. Spe­cial­ty Tires of Am. (Ten­nessee), Inc., 283 F.3d 818, 825 (6th Cir. 2002) (hos­pi­tal­iza­tion for severe depres­sion cov­ered by the FMLA); Vas­con­cel­los v. Cybex Int’l, Inc., 962 F. Supp. 701, 706 (D. Md. 1997) (hold­ing that “severe ner­vous dis­or­ders” are cov­ered by the FMLA).
  11. 29 C.F.R. §§ 825.114–15.
  12. 29 C.F.R. § 825.113(b).
  13. 29 C.F.R. § 825.114 (“Inpa­tient care means an overnight stay in a hos­pi­tal, hos­pice, or res­i­den­tial med­ical care facil­i­ty, includ­ing any peri­od of inca­pac­i­ty as defined in § 825.113(b), or any sub­se­quent treat­ment in con­nec­tion with such inpa­tient care.”).
  14. 29 C.F.R. § 825.115 (mak­ing “con­tin­u­ing treat­ment by a health care provider” con­tin­gent on prov­ing a “peri­od of inca­pac­i­ty” in con­nec­tion with the treat­ment or rea­son for treat­ment).
  15. See, e.g., Hur­ley v. Kent of Naples, Inc., 746 F.3d 1161 (11th Cir. 2014) (hold­ing that an employ­ee who suf­fered from depres­sion but did not allege that the request­ed leave was for a peri­od of inca­pac­i­ty did not qual­i­fy for FMLA leave); Bark­er v. R.T.G. Fur­ni­ture Corp., 375 Fed. App’x. 966 (11th Cir. 2010) (hold­ing that an employ­ee who suf­fered from anx­i­ety attacks which required him to take breaks from work was not qual­i­fied for FMLA leave because he was nev­er unable to com­plete his work); Chan­dler, 283 F.3d at 825 (hold­ing that an employ­ee who suf­fered from severe depres­sion and was hos­pi­tal­ized due the depres­sion did qual­i­fy for FMLA leave).
  16. See Hoff­man v. Prof’l Med. Team, 394 F.3d 414 (6th Cir. 2005) (find­ing that an employ­er was jus­ti­fied in deny­ing an employee’s appli­ca­tion for FMLA leave, when the appli­ca­tion alleged that her migraines did not pre­vent her from being able to work and it was only her pre­scribed migraine med­i­cine, which caused drowsi­ness, that could pre­vent her from work­ing).
  17. See Gilmore v. Univ. of Rochester, 654 F. Supp. 2d 141 (W.D.N.Y. 2009).
  18. See id.; Darst v. Inter­state Brands Corp., 512 F.3d 903, 908 (7th Cir. 2008) (“[S]ubstance abuse may be a Seri­ous Health Con­di­tion under cer­tain con­di­tions but FMLA leave may be tak­en only for treat­ment for sub­stance abuse . . . [A]bsence because of the employee’s use of the sub­stance, rather than for treat­ment, does not qual­i­fy for FMLA leave.”).
  19. See Hur­ley, 746 F.3d at 1168.
  20. O’Brien, supra note 9.
  21. See, e.g., Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) (rec­og­niz­ing the severe con­se­quences that can occur if gen­der dys­pho­ria is left untreat­ed); Nor­swor­thy v. Beard, 87 F. Supp.3d 1104, 1109 (N.D. Cal. 2015) (find­ing plain­tiff had a seri­ous med­ical need for gen­der reas­sign­ment surgery due to the “severe men­tal anguish she experience[d] as a result of her gen­der dys­pho­ria”).