Expanding the Definition of Disability Discrimination

In a 2-1 decision (Adams v. Rice, C.A.D.C. No. 07-5101, 7/18/08, a sharply divided federal appeals court has reversed the district court’s grant of summary judgment to the State Department and sent a foreign service applicant’s Rehabilitation Act appeal back for further consideration. In the process, the appeals court majority holds that “sexual activity” is a major life function that can be impaired within the meaning of the Act, giving rise to disability discrimination. The reported facts are taken from the court’s opinion.

Adams was a candidate for the Foreign Service and was well on her way to placement, having passed the exams and the medical clearance requirements. Following the medical clearance that qualified her for placement anywhere in the service, Adams was diagnosed with and apparently successfully treated for breast cancer. She did not tell the agency about this development until it had pretty much finished processing her application and was about to place her. When finally told, the agency expressed concern, requested information from Adams’ treating physician, reviewed her medical situation, and eventually concluded that she was no longer medically qualified for the Foreign Service.

Adams’ doctor reported that she was “cancer-free” with no medical restrictions on her activities, and that all she needed by way of treatment was a daily dose of medication and a twice a year exam. The agency was concerned that it did not have the facilities or personnel at its overseas posts qualified to treat Adams’ disease should she have a recurrence. Denial of the medical clearance meant that she could not be posted.

Adams filed a disability discrimination complaint under the Rehabilitation Act. She argued the agency was discriminating against her because it regarded her as disabled due to her cancer diagnosis. She also brought up for the first time in her law suit the argument that her disability impaired a major life function, that function being she was unable to perform sexually. The government pointed out that the alleged impairment is in an area that it could not possibly know about since it could never inquire into such activities of its applicants or employees. The district court granted the government’s motion for summary judgment and Adams took her case to the federal appeals court. (Opinion, pp. 2-8)

The 2-member majority upbraided the district court for ruling in favor of the State Department and sent the case back, giving Adams another day in court. Following what many would argue is a tortuous path of reasoning, the majority concluded that breast cancer is an impairment within the meaning of the statute, that Adams had presented enough evidence to show that her disability impaired a major life function—specifically in this case her lack of sexual desire, and that the agency consequently regarded her as disabled. In short, this was enough to avoid summary judgment for the government as far as the appeals court majority is concerned. (p. 31)

The dissent filed by Justice Karen LeCraft Henderson takes strong issue with the notion that the government is to be held accountable for disability discrimination under these circumstances. How can the government be held accountable for discrimination, she argues, when the major life activity that is supposedly impaired is sexual activity—something the government has no business inquiring into or knowing? Besides, Adams did not mention this impairment until long after the alleged acts of discrimination by the government. Justice Henderson points out that the statute defines an “individual with a disability” as someone with an “impairment” that “substantially limits” a “major life function” or “is regarded as having such an impairment.” (Dissent p. 2) How, she asks, can the government have regarded Adams as having a sexual activity impairment when it had no way to legally inquire into such matters and Adams had not mentioned such an impairment “until long after the fact” of the alleged discrimination? Justice Henderson states that Adams first mentioned her sexual activity impairment in her amended complaint in district court, some 15 months after the alleged discriminatory acts. And, when she mentioned it she referred to it as a “current impairment only.” (Dissent p. 3)

Justice Henderson also underscores that Adams, a lawyer, never mentioned the supposed impairment in the course of her administrative complaint, and in fact had asserted that she was fully recovered and had “resumed all physical activities,” making no mention of an exception for sex. (Dissent p. 3)

One kind of gets the sense that the agency is in a bit of a “Catch 22” here. When she still had a shot at a foreign service posting, Adams argued vigorously that she was cured, had absolutely no medical restrictions, no impairments, was fully normal now, and therefore should continue to enjoy the full medical clearance. On the other hand, once the agency said, sorry, we cannot give you a full medical clearance, Adams portrays herself as disabled, impaired in a major life function as a result, and consequently is the victim of discrimination. Which is it? And how defensible is the agency’s requirement that its foreign service personnel must have unrestricted medical clearance?

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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