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Is Sex a "Major Life Activity"? Why a Claim of Disability Discrimination Turns on the Answer

Posted Nov 30 2008 12:20pm
An interesting case concerning sexual dysfunction, and sexual relationships as a major life activity under Federal Law has recently been deicided. We have highlighted the summary of the case, but to read the entire synpopsis click here.

If you would have asked us five years ago whether FSD would be addressed under the Rehabilitation Act of 1973, we would have said we doubt it.


Kathy Adams and the Revocation of Her Position with the Foreign Service

The plaintiff in Adams is a woman who applied for the U.S. Foreign Service, scored extremely well on the entrance examinations, and received medical clearance to join. Soon after her acceptance, however, she was diagnosed with breast cancer and had to undergo surgery and other treatment for it. Upon hearing about her breast cancer, the State Department revoked her medical clearance and thus disqualified her from the Foreign Service.

Adams brought suit under the Rehabilitation Act of 1973. She claimed as her disability the cancer from which she had suffered prior to successful treatment. The trial court granted summary judgment to the defendant, finding that Adams did not have a record of disability for purposes of the Rehabilitation Act.

Under the Rehabilitation Act, federal agencies may not discriminate in employment against disabled individuals. As with the broader and more recently enacted Americans with Disabilities Act, to trigger the application of the Rehabilitation Act, a complaining party must first demonstrate that he suffers from a disability (or has a record of a disability or is perceived by the defendant as having a disability). Like the ADA as well, the Rehabilitation Act defines a disabled individual as one who suffers from a physical or mental impairment that substantially limits one or more of that individual’s major life activities. If an individual has neither a disability nor a record of disability and is also not perceived by the defendant as disabled, then he has no basis for a lawsuit.

It is undisputed among the parties in Adams that cancer qualifies as a “physical impairment” for purposes of the law. The controversial question is whether the impairment “substantially limit[ed]” one or more of the plaintiff’s “major life activities.” The major life activity limitation that Adams alleged, and that the Court of Appeals accepted as qualifying under the statute’s requirements, was the sexual dysfunction that she said resulted from a combination of surgery (a mastectomy), which affected her body image and self-esteem, and medication (tamoxifen), which affected her libido.

The Court of Appeals agreed that an inability to become involved in sexual relationships represented a substantial limitation on a major life activity and that Adams’ discrimination claim therefore should have survived the State Department’s motion for summary judgment.
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