In 2006, the D.C. Circuit decided the Taylor v. Rice case, about a Foreign Service Officer with HIV, who was denied overseas postings because State did not believe he could receive proper treatment at some postings. On July 18, the D.C. Circuit issued another favorable decision, involving a prospective FSO with breast cancer who was also denied hiring because State believed she could not get proper treatment overseas. The D.C. Circuit, in a split decision, reversed the district court's (Judge Sullivan) grant of summary judgment to State and remanded, over a dissent by Judge Henderson. This decision is somewhat different from Taylor, in that the plaintiff here (Ms. Adams) alleged that because of surgery, she did not, in fact, require any specialized care overseas.
While the D.C. Circuit agrees that Ms. Adams cannot show either (1) that she was discriminated against on the basis of disability (breast cancer) that caused a substantial impairment because the impairment was resolved through surgery at the time State made the discriminatory decisions; or (2) that she was regarded as being "substantially limited in the major life activity of working" because even if she still had breast cancer, she could continue to work in this country, and was only potentially barred from working overseas, the D.C. Circuit does hold that she can prove a claim based on her "record of disability," i.e., the history of breast cancer, and the subsequent consequences - here an inability to engage in sexual relations. The D.C. Circuit applies the Supreme Court's Bragdon decision to hold that an inability to engage in sexual relations is protected under the disability statutes.
Importantly, the D.C. Circuit squarely rejects the government's argument that it did not know about all the consequences of her disability, since that would otherwise allow an employer to escape liability under the Rehabilitation Act. The court explains that ignorance is not a safe harbor, and someone who has recovered from cancer should not have to spell out to her employer all the subsequent consequences or side effects.
Some excerpts follow:
http://pacer.cadc.uscourts.gov/common/opinions/200807/07-5101-1128299.pdf
Argued April 11, 2008 Decided July 18, 2008
No. 07-5101
KATHY E. ADAMS, APPELLANT v. CONDOLEEZZA RICE, SECRETARY OF STATE, APPELLEE
Appeal from the United States District Court for the District of Columbia (No. 05cv00941)
Ellen K. Renaud argued the cause for appellant. With her on the briefs was David H. Shapiro. Richard L. Swick entered an appearance.
Daniel B. Kohrman and Melvin Radowitz were on the brief for amici curiae American Association of Retired Persons and American Cancer Society in support of appellant.
John C. Truong, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: HENDERSON, TATEL, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge HENDERSON.
TATEL, Circuit Judge:
Appellant Kathy Adams, a candidate for the United States Foreign Service, passed the required entrance examinations and received a medical clearance, only to learn thereafter that she had been diagnosed with stage-one breast cancer. Upon hearing the news, the State Department, expressing concern that many of its overseas posts lack the follow-up care it believed Adams required, revoked her medical clearance, disqualifying her from the Foreign Service. Adams sued under the Rehabilitation Act of 1973, which prohibits federal agencies from discriminating in employment against disabled individuals-including those with a "record of" a disability, 29 U.S.C. § 705(20)(B)(ii). In her complaint, she alleged that her surgical treatment rendered her cancer-free and able to work anywhere in the world without requiring specialized follow-up care. Without allowing discovery, the district court granted summary judgment to the State Department, concluding among other things that Adams had no record of a disability as defined in the statute. For the reasons set forth in this opinion, we reverse.
. . . In her amended complaint, Adams alleges that the Department discriminated against her because of a disability, i.e., breast cancer. The State Department responded with a motion to dismiss, or in the alternative, for summary judgment. Noting that "[n]o discovery has taken place, but both parties have submitted declarations and other forms of documentary evidence to support their positions," the district court treated the Department's motion as one for summary judgment and granted it. Adams v. Rice, 484 F. Supp. 2d 15, 19 (D.D.C. 2007). Although the district court found the State Department's "refusal to accept the recommendations of [Adams]'s physicians or otherwise accommodate her minor medical needs . . . both callous and unreasonable," it nonetheless concluded that Adams had failed to show she had a disability as defined in the Act. Id. at 23-24.
. . . Here, Adams alleges that the State Department denied her employment because of her status as a cancer survivor. She seeks no accommodation of any sort-indeed, her entire case rests on the proposition that she is "fit as a fiddle," Adams Decl. ¶ 47, and perfectly able to serve anywhere in the world no matter the conditions without requiring the services of medical specialists for follow-up care.
"Record of" a Disability
Seeking to "make clearer that the [Act's] coverage . . . extends to persons who have recovered-in whole or in part-from a handicapping condition, such as a mental or neurological illness, a heart attack, or cancer," S. REP. NO. 93-1297, at 38-39 (1974), Congress amended the Rehabilitation Act in 1974 to cover not only those individuals with impairments that substantially limit a major life activity, but also those having "a record of such an impairment," Pub. L. No. 93-516, § 111, 88 Stat. 1617, 1619 (now codified at 29 U.S.C. § 705(20)(B)(ii)) (emphasis added). The "record of" definition was tailor-made for plaintiffs who, like Adams, claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it. See 29 C.F.R. pt. 1630, app. § 1630.2(k) (explaining that the "record of" definition "protects former cancer patients from discrimination based on their prior medical history").
Our inquiry under the "record of" definition therefore follows a three-step process. First, we ask if Adams has a history of a mental or physical impairment. If so, we ask whether the impairment limited an activity qualifying as a major life activity under the Act. Finally, if both the impairment and activity pass muster under the statute, we ask whether the alleged limitation was substantial. We consider each of these issues in turn.
Here it is undisputed both that Adams has a history of breast cancer and that breast cancer qualifies as a "physical impairment" under the Act. . . . Having found that Adams has a history of an impairment, we next determine whether that impairment has limited any of her major life activities. Adams argues that it has in two ways. First, she contends that after her various surgeries- which required brief hospital stays-she "was unable to care for herself and unable to work." Appellant's Opening Br. 39. Under Toyota, however, "the impairment's impact must . . . be permanent or long term." 534 U.S. at 198; see also Haynes v. Williams, 392 F.3d 478, 483 & n.4 (D.C. Cir. 2004). Here, the evidence shows that Adams's difficulty caring for herself, working, performing household chores, and driving lasted for only several weeks following her surgeries. Assuming any or all of these activities qualify as major life activities under the Act, we agree with the district court that because Adams's "recovery times . . . consisted only of several weeks," they were "hardly enough to qualify as . . . permanent or long-term." Adams, 484 F. Supp. 2d at 22; see also Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir. 1999) ("A temporary inability to work while recuperating from surgery is not . . . a permanent or long-term impairment and does not constitute evidence of a disability covered by the Act.").
Adams's second argument is that her cancer substantially limited her in the major life activity of engaging in sexual relations. Adams alleges that although she remains cancer free, has an "excellent prognosis," no longer requires ongoing cancer treatment, and "has no particular limits on her work activities," she remains "limited in the major life activity of sexual contact and romantic intimacy." Am. Compl. ¶ 12. According to Adams, her cancer treatment left a "residual effect . . . that may never resolve"-one that is "psychological in nature." Adams Decl. ¶ 48. . . .
This circuit has yet to decide whether sexual relations constitutes a major life activity for purposes of the Act. Arguing that it does, Adams relies on the Supreme Court's holding in Bragdon v. Abbott that human reproduction qualifies as a major life activity, see 524 U.S. at 638, and the government's brief presents no argument to the contrary. Based on the statute's text, the Supreme Court's reasoning in Bragdon, and a hefty dose of common sense, we hold that engaging in sexual relations qualifies as a major life activity under the Act.
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. As for the word "major," the Supreme Court has explained that "the touchstone for determining an activity's inclusion under the statutory rubric is its significance." Id. (internal quotation marks omitted). 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.
Bragdon supports this self-evident conclusion. There the Supreme Court held that asymptomatic HIV constitutes a disability under the ADA because it is a physical impairment that substantially limits the major life activity of reproduction. 524 U.S. at 637-41. Our holding follows directly from Bragdon. In concluding that reproduction meets the statutory definition, the Bragdon Court explained that "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself." Id. at 638 (emphasis added). . . .
The upshot is this: if an employer discriminates against an employee on the basis of a physical or mental impairment, or the record thereof, and if the impairment in fact qualifies as a "disability" under the Act, i.e., it substantially limits or once limited a major life activity, then the employer may be vulnerable to a charge of employment discrimination.
This conclusion makes sense because creating a knowledge requirement in situations involving pure discrimination would shield the most ignorant, irrational, and prejudiced employers-precisely the kinds of employers Congress intended the Act to reach. Under the government's theory, an employer could lawfully fire an employee solely for revealing that she had recovered from ovarian cancer after undergoing a hysterectomy, so long as the employer didn't know the effect such treatment has on reproduction. A better informed employer, however, would suffer the full consequences of his decision. Congress could not have intended ignorance to act as a safe harbor. Moreover, in the government's view, to preserve a claim under either the Rehabilitation Act or the ADA, cancer survivors would have to announce to employers, "Yes, I once had cancer, and it substantially limited me in the following major life activities." Absent such disclosure, the employer could discriminate at will simply because he didn't like having cancer survivors around the office, or because he harbored "the irrational fear that they might be contagious." Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987). As amici point out in their brief, Congress enacted the Rehabilitation Act and the ADA to forbid such blatantly discriminatory actions, intending to protect cancer survivors who qualify as disabled under the statute from employment discrimination based on myths, fears, and stereotypes about the disease.
In sum, because Adams has provided sufficient evidence showing that she has a record of an impairment that substantially limited her in a major life activity, and because the government nowhere contested any of the evidence Adams offered in support of her disabled status, we reverse the district court's grant of summary judgment to the State Department and remand for proceedings consistent with this opinion.
(Alan R. Kabat, Bernabei & Wachtel, PLLC)
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