Kozak v. CSX Transp., Inc.

Affordable Care ActNew YorkWestern District of New YorkDisability AccommodationGender DysphoriaEmploymentTitle VIINew York State Human Rights LawDisability

Apr 24

Written By Mack Karbon

U.S. District Court for the Western District of New York

Case no. 1:20-cv-00184-WMS-LGF STATUS: ONGOING

UPDATE, APRIL 27:
The parties filed a status report on April 27, 2024, stating that, “Despite strenuous efforts on both sides, the parties have not been able to reach agreement on settlement, and appear to be at an impasse.” A trial will likely be scheduled to adjudicate Ms. Kozak’s remaining claims.

CASE INFORMATION

Plaintiff Leah Kozak, a transgender woman, worked as a Yard Foreman for the CSX Transportation, a freight transportation company.

At the start of her transition, Ms. Kozak was prescribed a hormone suppressing drug that is also a diuretic and causes frequent urination. This presented a difficult situation for Ms. Kozak, as the yard where she worked did not have portable toilets. To use the bathroom, Ms. Kozak had to leave the yard and locate an indoor toilet, which could take 10-30 minutes. Ms. Kozak asked her supervisors to provide portable restrooms at the yard, which they refused to do at that time.

Rather than spend hours a day walking to and from a bathroom, Ms. Kozak followed the example of her male peers and urinated discreetly behind a shack in the yard, invisible to the public and to other workers. She did this only once.

Unbeknownst to Ms. Kozak, her supervisor - a cisgender woman who had declared that trans people are “unnatural and disgusting and against God” - secretly viewed Ms. Kozak urinating in footage captured by yard security cameras. Ms. Kozak was immediately pulled out of service and suspended for violating the CSX policy requiring employees to be “respectful and courteous.” CSX also claimed that Ms. Kozak committed a “lewd act” in violation New York State law.

During an investigation into Ms. Kozak’s alleged violations, cisgender male yard workers testified that urinating behind the shack was common practice. CSX has never disciplined a non-transgender employee for urinating discreetly in the yard.

After the investigative hearing, on July 16, 2019, Ms. Kozak was terminated from her position at CSX.

An arbitration board subsequently reinstated Ms. Kozak but refused to grant her back pay or benefits for time lost. The board also mandated that Ms. Kozak’s time away appear as an “actual suspension” in her personnel record.

On February 10, 2020, Ms. Kozak filed a complaint against CSX Transportation, alleging:

Discrimination on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (“NYSHRL”);
Discrimination on the basis of her disability (gender dysphoria & frequent urination), in violation of the Americans with Disabilities Act (“ADA”) of 1990 and the NYSHRL;
Failure to accommodate in violation of ADA and the NYSHRL.

CSX filed a motion for summary judgment on all claims. Ms. Kozak opposed the motion, and did not file a crossclaim.

Gender Dysphoria as a Disability

Whether gender dysphoria is a disability under the ADA is a “question that divides the parties, and the courts around the country.”

— Aug 1, 2023, Decision by the district court

CSX argued that gender dysphoria is not a disability according to the language of the ADA at the time of its enactment in 1990. Specifically they point to ADA Sec. 12211, which excludes from the definition of disability: “transvestism, transsexualism,...gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”

District Court Decision

In a decision handed down on August 1, 2023, the district court found that gender dysphoria is not a “gender identity disorder” as described in Sec. 12211, and therefore can be considered a disability under the ADA. The court stated:

The DSM-5-TR did away with the overarching category of “gender identity disorders,” replacing it with a new category, “gender dysphoria.” The specific diagnosis of “gender identity disorder” is also gone.

...

There are obvious differences between the definition of gender identity disorders in the DSM-III-R and the diagnosis of gender dysphoria in the DSM-5. Most notably, the new diagnosis of gender dysphoria lacks a behavioral component and now includes a requirement of “clinically significant” distress.

The court’s determination adopts the Fourth Circuit’s reasoning on the same question, which was presented in the case Williams v. Kincaid (“[t]he obsolete [gender identity disorder] diagnosis focused solely on cross-gender identification; the modern one on clinically significant distress”).

Although the court found that gender dysphoria can be an ADA disability, it nonetheless held that Ms. Kozak failed to produce sufficient evidence showing that her dysphoria “substantially limit[ed]” her in a “major life activity,” such that she is disabled within the meaning of the ADA.

It did, however, find that Ms. Kozak’s disability claims could pass muster under the relatively lax NYSHRL disability provisions, and retained supplemental jurisdiction to adjudicate the state claims at a later date.

Sex Discrimination

The court additionally found that a reasonable jury could find that Ms. Kozak was discriminated against on the basis of her sex in violation of Title VII, and denied CSX’s motion for summary judgment on this count.

....................

UPDATE, APRIL 25: On April 5, 2024, the parties submitted a Joint Status Report stating that they “consider themselves to be close to an agreement in principle.” The parties requested 21 additional days to conclude the agreement, which brings the settlement deadline to April 26, 2024. If the parties cannot settle, a trial will be scheduled to adjudicate Ms. Kozak’s remaining claims (disability under NYSHRL and Title VII sex discrimination).

UPDATE, APRIL 27: The parties filed a status report on April 27, 2024, stating that, “Despite strenuous efforts on both sides, the parties have not been able to reach agreement on settlement, and appear to be at an impasse.” A trial will likely be scheduled to adjudicate Ms. Kozak’s remaining claims.

Follow for updates.