DGRead 22.12.01

Employment Law Challenges in the New Normal; The Pitfalls of Lawyer Ads; Alcoholism at Work—A Legal Minefield

The Pitfalls of Lawyer Advertising

By: Jarrad Wright

When the U.S. Supreme Court decided the seminal case of Bates v. State Bar of Arizona, 430 U.S. 350 (1977), that held that lawyer advertisements were protected by the First Amendment, it would have been hard to imagine our modern world where television, print and online advertisements from lawyers inundate audiences. Today, audiences routinely are exposed to lawyer advertisements in topics that range from taxes to personal injury to mass tort litigation, and everything else in between. The exponential growth of lawyer advertisements have also caused an equally expanding and changing array of restrictions on those advertisements from state legislatures, bar associations, and courts. This field is every changing and lawyers must tread carefully to ensure that they do not overstep their bounds.

Recently, in Recht v. Morrissey, 32 F.4th 398 (4th Cir. 2022), the Fourth Circuit Court of Appeals reversed the district court and upheld West Virginia’s new law restricting what can be said in lawyer advertisements involving pharmaceutical products. West Virginia and other states, including Texas and Tennessee have enacted various limitations on what can be and cannot be included when a lawyer advertises in cases involving prescription drugs. In the case of the West Virginia statute, advertisements were restricted from using the phrases “consumer alert” or “health alert”. In addition, the state statute limited the use of the word “recall”. Specifically, the statute only permits the use of the word “recall” in the pharmaceutical context when a product had actually been ordered recalled by a government agency or was being recalled by agreement between a manufacturer and a government agency. As such, the term cannot be used when addressing voluntary recalls. The purpose of the statute is to prevent consumer confusion as the average consumer may not be aware of such distinctions. Similarly, the statute prohibits lawyer advertisements to include the logo of a government agency to prevent consumers from believing that the law firm is endorsed by such an agency. Finally, the statute requires advertisements to contain a warning that people should not discontinue using prescribed medications without first consulting with a doctor.

While the district court granted summary judgment on the grounds that such consumer protections violate an attorney’s free speech rights under the First Amendment, the unanimous Fourth Circuit disagreed. The Fourth Circuit explained that the Supreme Court’s strict scrutiny standard is “improper when reviewing laws that regulate commercial speech” and that instead intermediate scrutiny applies to such commercial speech.  Intermediate scrutiny requires a determination that the expression is generally protected by the First Amendment, but “for commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.”  Recht, 32 F.4th at 408 (quoting Central Hudson Gas & Elec. Corp. v. Public Ser. Comm’n of N.Y., 447 U.S. 557, 566 (1980)). Next, the court will look to whether a governmental interest is substantial.  If so, the question becomes “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Id. Importantly, the government is not required to use the least restrictive means possible, but a court will consider their reasonableness. In Recht, the Fourth Circuit found that the restrictions were not unreasonable and that they advanced a significant government interest. As such, the restrictions on commercial speech where allowed.

Similar regulations in other jurisdictions are likely to spread in the pharmaceutical context and perhaps to other issues of public interest in which lawyers advertise. The historical trust the public has had in lawyers means that bar associations and legislatures will for the foreseeable future impose regulations and rules on lawyer’s commercial speech whenever there is a perception that the public’s trust could be compromised. Accordingly, it is important for firms to regularly check the current status of such regulations, statutes, and ethics opinions concerning each industry and in each jurisdiction that they operate. The rules concerning lawyer advertising have continued to evolve with communications.

The professionals at DiMuroGinsberg, P.C. have decades of experience advising clients about the changing legal ethics environment, including advertising issues. If you’d like to know more about this subject, contact Jarrad Wright at jwright@dimuro.com.

DGRead 22.11.15

Jonathan Mook to Join Panel for CLE Webinar About ADA Accommodations for At-Risk Employees; Does the ADA Require Employers to Let Workers Relocate?; DiMuroGinsberg Recognized by Best Lawyers

DGRead 22.11.01

Jonathan Mook to Speak at AAPA’s Legal & Regulatory Conference; ADA Employment Law Developments; Nina Ginsberg Named White Collar Crime and Investigations Lawyer of the Year in Virginia – 2023

DGRead 22.10.15

Ethics Seminar Presented by Virginia CLE; Is Long COVID Real?; Gender Identity vs. Gender Dysphoria: A Clear Win for Transgender Rights

DGRead 22.10.01

Ben DiMuro’s Notes on the Rocket Docket; Rocket Docket Update; Gender Dysphoria May Be an ADA Disability

Gender Dysphoria May Be an ADA Disability

By: Jonathan R. Mook

The rights of transgender persons have become a hot button issue not only in schools and sports but in the workplace as well. Recently, the U.S. 4th Circuit Court of Appeals (whose rulings apply to employers in Virginia, Maryland, North Carolina, South Carolina, and West Virginia) weighed in on whether a transgender woman, who suffered from gender dysphoria, was protected under the Americans with Disabilities Act (ADA). With the decision, the 4th Circuit became the first appellate court in the country to rule that gender dysphoria may constitute an ADA disability.

Williams’ ADA lawsuit

Kesha Williams—who has gender dysphoria and was serving time in the Fairfax County, Virginia, jail—asked to obtain the hormones she had been prescribed to treat her disorder. The jail inquired whether she’d had genital surgery, and when it learned she had not, it moved her from the part of the jail for women to the part reserved for men. While housed with the male prisoners, she claimed she was harassed and denied consistent hormone treatment.

Williams filed suit in the U.S. District Court for the Eastern District of Virginia against Stacey Kincaid, in her capacity as Fairfax County Sheriff. In her lawsuit, Williams invoked the provisions of the ADA that prohibit state and local governments from discriminating against disabled individuals, including those who are incarcerated in local prisons or jails.

The district court dismissed Williams’ ADA claim, reasoning that her gender dysphoria constituted a “gender identity disorder not resulting from physical impairment,” which is specifically excluded from the statute’s protections. She appealed the dismissal of her lawsuit to the 4th Circuit, and a split three-judge panel reversed the lower court.

4th Circuit’s ruling

In a precedent-setting decision, the 4th Circuit became the first federal circuit court to hold that gender dysphoria is not excluded from the ADA’s protection. The majority opinion was written by Circuit Judge Diana Gribbin Motz and joined by Circuit Judge Pamela Harris. Circuit Judge A. Marvin Quattlebaum, Jr., dissented with respected to the majority’s analysis of Williams’ ADA claim.

In her opinion, Judge Motz noted that “gender dysphoria” is a mental condition first recognized by the American Psychiatric Association (APA) in 2013, long after the ADA was enacted into law with the exclusion for “gender identity disorders not resulting from physical impairment.” She also noted that gender dysphoria focuses on the clinically significant distress of transgender individuals, not on being transgender itself, which is the focus of gender identity disorder. Hence, she reasoned that “nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identity disorder’ excluded from ADA protection.”

Given the scientific advances in understanding the causes of gender dysphoria, Judge Motz also found that Williams had alleged sufficient facts “to render plausible the inference that her gender dysphoria ‘result[s] from physical impairments’” such as a hormone imbalance. It was significant that Williams had alleged the medical treatment for her gender dysphoria “consisted primarily of a hormone therapy,” and that she had received the medical treatment for 15 years.

Finally, Judge Motz’ majority opinion concluded that to interpret the ADA as foreclosing coverage of gender dysphoria could constitute discrimination against transgender persons as a class and raise “a serious constitutional question” about the violation of the equal protection clause of the Fourteen Amendment. As the majority’s opinion explained, “a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.”

Accordingly, on these three separate and independent bases, the panel majority reversed the district court’s dismissal of Williams’ ADA claim and sent the matter back to the lower court for further proceedings.

Vigorous dissent

In his dissent, Circuit Judge Quattlebaum adopted an originalist interpretation of the statute and emphasized, “our focus must be on what gender identity disorders meant in 1990,” not on the APA’s updated definition from 2013.

Judge Quattlebaum reasoned that at the time the ADA was enacted, the meaning of gender identity disorders included gender dysphoria. Hence, “under basic principles of statutory construction,” he opined that Williams’ ADA claim should be dismissed. Williams v. Kincaid, 2022 U.S. App. LEXIS 22728 (4th Cir., Aug. 16, 2022).

Impact of Williams’ decision

Because the 4th Circuit’s Williams decision is the first federal circuit court ruling on whether gender dysphoria is excluded from ADA coverage, and because it answered “no,” the decision constitutes a landmark ruling in recognizing the legal rights of transgender individuals.

Although the 4th Circuit’s decision binds lower courts only within its jurisdiction, Williams certainly will be influential elsewhere and, undoubtedly, will be cited as the leading case in future litigation involving ADA coverage of transgender persons. Also, should other circuit courts disagree with the 4th Circuit majority’s analysis, the question of whether gender dysphoria comes within the ADA protections may well need to be answered definitively by the U.S. Supreme Court.

Addressing transgender issues

The Williams decision clearly signals that now is the time to start planning how best to address the myriad issues that will arise should gender dysphoria be generally recognized as constituting an ADA disability. Because the Act prohibits employers not only from terminating or refusing to hire a disabled individual but also bars discrimination in all aspects of the employment relationship and requires reasonable accommodation, you need to be attuned to the full panoply of rights transgender employees may have under the ADA.

Thus, employees with gender dysphoria may have the right under the ADA to use restrooms and locker rooms that correspond to their gender identity, as well as wearing uniforms or other clothing that matches their gender identity. Accommodations persons with gender dysphoria might seek also include leave for treatment of their disorder or a flexible work schedule.

You especially should be attuned to potential harassment of transgender employees because harassment based on a person’s disability violates the ADA. Finally, issues involving coverage for gender transition operations and other types of medical care have been percolating in the courts. If your employee health plan categorically excludes gender transition treatment for gender dysphoria, ADA claims may arise as well.

Confronting these issues may be fraught with controversy because the status of LGBTQ individuals in our society has become so politicized. Whatever stance you take in dealing with these matters likely will be the subject of scrutiny and debate. Accordingly, you are well advised to consult with experienced employment counsel to ensure that whatever decisions you make pass legal scrutiny.

 

DGRead 22.09.15

Ben DiMuro’s Thoughts on Ethics in Employment Law; Employers Tracking Remote Workers: Good Idea, or NO?; Enforcing the Biden Administration’s COVID 19 Vaccine Mandate for Federal Contractors

DGRead 22.09.01

Event: Ben DiMuro to Speak About the Rocket Docket; 4th Circuit Says ADA Covers Gender Dysphoria – What Does That Mean for the Future?; The Best Lawyers in America

DGRead 22.08.15

Event: Employment Law Ethics; Event: ADA Employment Law and Litigation for Beginners; ADA Medical Exams and Drug Test Video Excerpt; Long COVID is Here to Stay (Get it?)