Tuesday, August 12, 2008

Tell us something we didn't know - court holds that sex is a major life activity


"Disability" is a term of art under the ADA. To be legally "disabled" and entitled to the protections that the ADA provides, it is not enough to simply have a medical condition. That condition must substantially limit a major life activity. In Adams v. Rice (2nd Cir. 7/18/08) (decided under the Rehabilitation Act, the predecessor to the ADA, which prohibits federal agencies from engaging in employment discrimination against disabled individuals), the court was faced with an employee with stage-one breast cancer, which the court determined substantially limited her in the major life activity of sexual contact and romantic intimacy:

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an "activity" in any sense of that word. ... At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to "be fruitful and multiply." Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a "major" life activity. ...

Having decided that engaging in sexual relations qualifies as a major life activity, we next determine whether Adams has sufficiently alleged a substantial limitation on that activity. This is an individualized inquiry that focuses on Adams's own experience. ... According to Adams, her breast cancer treatment rendered her completely unable to engage in sexual relations. Due to the scarring from her mastectomy and breast reconstruction, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, or some combination of those factors, she claims that her "ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently." ... Adams's breast cancer qualifies as a disability because it amounted to a physical impairment that substantially limited her in the major life activity of sexual relations.

The employment decision is this case just smells bad. Adams had passed both the written and oral examinations for the Foreign Service before finding out she had breast cancer. After her diagnosis and surgery, the State Department cleared her appointment, advising Adams that she had scored 7th out of the 200 applicants. The next day, Adams informed the State Department of her cancer. The State Department, in turn, withdrew her clearance. Thus, the court looked past the lack of any nexus between the employer's knowledge of the condition and the knowledge of the substantial limitation on a major life activity.

Perhaps the lesson to be learned is that when a case presents horrific facts, courts will sometimes find a way to rationalize a fair and just result. There is no doubt that Adams's cancer had no impact on her ability to do her job whatsoever, and yet it appears clear that is was entirely because of her diagnosis that the State Department pulled her foreign clearance and killer her application. In other words, if it looks like discrimination, and smells like discrimination, it probably is discrimination.

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