Monday, July 21, 2008

Sex as a Major Life Activity in the Cancer Context

Scalesred The D.C. Circuit has held in Adams v. Rice (DC Cir 07/18/2008) that sexual relations is a major life activity under the Rehabilitation Act of 1973 in a case involving a women with a record of breast cancer.  And remember that the same definition for disability exists under the ADA as well.

From Ross Runkel:

Adams sued the employer for violation of the Rehabilitation Act (RA) alleging employment discrimination based on her "record of" a disability. The trial court granted summary judgment in favor of the employer. The DC Circuit reversed.

After passing the foreign service exam and the medical exam, Adams developed breast cancer, was treated surgically followed with tamoxifen pills and check ups, was declared cancer free by her treating physician, but was denied appointment based on her medical condition. . . . . 

The court found (without employer opposition) that breast cancer was an impairment. Based on the statute's text, the Supreme Court's reasoning in Bragdon v. Abbott, 524 US 624 (1998), and a hefty dose of common sense, the court held that engaging in sexual relations qualified as a major life activity under the RA. Noting that the employer did not challenge Adams's assertion that she was substantially limited in her ability to engage in sexual relations, the court concluded that the employer conceded, at least for summary judgment purposes, that Adams's claimed impairment did substantially limit her in a major life activity.

The court stated that the RA was a remedial statute designed in no small part to protect cancer patients from employment discrimination which should not be interpreted to exclude cancer patients who experienced few limitations on their life activities until they began the often grueling process of surgery, radiation, and/or chemotherapy.

The DISSENT argued that while Adams had an impairment (breast cancer), she offered no evidence that her impairment substantially limited her in a major life activity at any time before the alleged discriminatory acts occurred.\

This argument between the majority and dissent is one that was also fought out in the AIDS context in Bragdon v. Abbott.  The issue is whether you have to show for that individual specifically that their ability to engage in sexual relations was substantially limited by her impairment or whether the disease itself, without a specific individual showing, suffices to meet the substantial limitation test.

It is unclear whether this case is unusual because the employer apparently conceded the substantial limitation point or whether the court is making a larger point about breast cancer impairment. I think the former, as cases since Bragdon, including the Sutton triology of 1999, make clear that the finding of disability under the RA or the ADA should be based on an individualized, holistic assessment of the individual's disability and not on per se categories of disability.

And to whether sexual relations is actually a major life activity, I guess it depends on whether you are married or not . . . .


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Of course, if the ADA amendments that passed the House survive the Senate in their present form and are signed into law, many of these debates will become academic. Breast cancer survivors will clearly be covered by the Act, as will be HIV-positive individuals.

Posted by: Art Leonard | Jul 22, 2008 3:54:18 AM

I find this opinion deeply troubling, but for reasons totally off of most people's radar screen. I identify as asexual (not sexually attracted to anyone), which is not a widely acknowledged identity. The implications of this opinion seem to be that my sexual orientation has been declared a disability, which would be a political disaster for asexuals.

Posted by: Andrew | Aug 2, 2008 2:18:30 PM

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