Cabela’s Retail Inc., which is being sued by trans woman Kate L. Blatt, filed a legal brief last week urging partial dismissal of her lawsuit.

Blatt claims job discrimination by Cabela’s. The store, located in Hamburg, specializes in outdoor sports items. Blatt worked there as a seasonal stocker between September 2006 and March 2007.

Blatt alleges that Cabela’s discriminated against her because of her disability — gender dysphoria — when denying her access to a female restroom. Part of Blatt’s lawsuit challenges the constitutionality of the Americans with Disabilities Act, because it excludes gender-identity disorder as a protected disability.

The ADA protects people with disabilities from discrimination in private employment, public accommodations and governmental services.

Blatt contends that Congress acted unconstitutionally in 1989 when it excluded GID as a protected disability under the ADA.

In its Feb. 17 brief, Cabela’s says it won’t take a position on the constitutionality of the ADA. But Cabela’s brief lists several reasons why the disability-discrimination portion of Blatt’s complaint should be dismissed.

For example, the brief states that Blatt was offered the use of a unisex restroom, which could be considered a “reasonable accommodation.” The brief also contends that Cabela’s never perceived Blatt to be disabled.

To support that assertion, Cabela’s notes that Blatt was assigned to stock items in its gifts department. In addition, it states, a coworker’s alleged concern that Blatt might rape another woman in a female restroom indicates that Blatt wasn’t perceived to be disabled.

Cabela’s also stated it wasn’t aware of any documentation that verifies Blatt’s disability.

“[Blatt] has failed to set forth any allegations that a record of her impairment exists,” the brief states. “Moreover, [Blatt] has failed to allege that Cabela’s relied on any record of impairment in making its employment decisions.”

The brief also refutes Blatt’s claim that Cabela’s retaliated against her for opposing discrimination based on her disability.

“Cabela’s respectfully submits that [Blatt] has failed to plead facts showing that she engaged in protected activity by opposing discrimination on the basis of disability,” the brief states.

Instead, Cabela’s maintains, Blatt complained of retaliation due to complaints of discrimination based on her sex.

According to the brief, alleged comments by Blatt’s coworkers point to sex discrimination, not disability discrimination. Those alleged comments include: “Can you believe this cross-dressing gay fruit wants a job in my department?” and “The confused sicko can’t figure out that he is gay and admit it.”

Additionally, the store refutes Blatt’s claim that Cabela’s retaliated against her for objecting to a lack of a reasonable accommodation for her disability.

“[Blatt’s] complaint does not contain allegations showing that [Blatt] engaged in protected activity by requesting an accommodation for a disability,” the brief states. “Rather, the facts, as alleged, make it clear that [Blatt’s] complaints and requests for a female uniform, name tag and use of the female restroom were based on her gender.”

In a related development, on Feb. 10 the case was reassigned to U.S. Distinct Judge Joseph F. Leeson. The case was previously assigned to U.S. District Judge Jeffrey L. Schmehl.

The case is in the discovery phase, and a jury trial has been requested.

From our media partner PGN


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