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Redefining Disability?
A recent ruling that declared an individual with impaired sexual ability to be disabled may lead many human resource executives to rethink their approach to disability claims, experts say.
A recent court ruling found that the loss of sexual desire is a disability requiring reasonable accommodation could lead to increased lawsuits. In the case of Kathy E. Adams vs. Condoleezza Rice, Adams, a U.S. Foreign Service candidate and breast-cancer survivor, sued the State Department, which had revoked her medical clearance and denied her candidacy for a foreign posting after she was diagnosed with breast cancer, even though she had been cancer-free after undergoing surgical treatment. Adams also underwent a mastectomy and had her ovaries and fallopian tubes removed. As a result of her treatment, she gained weight and reported feeling her libido decline, according to court documents. In a 2-1 decision, the U.S. Court of Appeals for the District of Columbia Circuit recently ruled that Adams's lawsuit against the State Department may proceed, concluding that sex is the kind of "major life activity" that Congress considered when it passed the Rehabilitation Act in 1973. The decision gives Adams a second chance to potentially serve overseas, and may have opened the floodgates for more disability claims, says Victoria Zellers, a member of the labor and employment practice group in the Philadelphia office of law firm Cozen O'Connor. "The Adams ruling is likely to trigger more disability claims," she says, "because there are numerous physical and mental impairments which limit one's ability to engage in sexual relations." Moreover, the Adams decision may be a sign that more disability claims will survive summary judgment and go to trial, Zellers adds. "Proving one is disabled is often a high legal hurdle that a plaintiff cannot meet to allow his or her case to proceed to trial. "Many impairments do not substantially limit the 'major life activities' specifically enumerated in the Department of Labor's regulations, i.e., seeing, hearing, walking, breathing, speaking, learning, working, performing manual tasks or caring for oneself," Zellers continues. "Under the Adams decision, impairments such as a heart condition or depression -- which physically or mentally limits one's ability to engage in sexual relations -- will qualify as disabilities." She says HR professionals "will have to view the term disability much more broadly than before." "In addition to the fact that more persons will qualify as disabled -- with sexual relations qualifying as a major life activity -- an employer will not even have to know about the employee's specific limitations before it will be charged with knowledge of a disability for discrimination claims," she says. Decisions regarding what constitutes a disability and the meaning of "major life activity" have been "all over the map" since the Americans with Disabilities Act was passed more than 15 years ago, says Mark Spring, partner in the Sacramento office of employment law firm Carlton, DiSante & Freudenberger. Much like the ADA is designed to protect the at-large workforce, the Rehabilitation Act of 1973 is intended to prohibit discrimination against federal employees and covers a wide range of mental and physical impairments that significantly limit a major life activity. Although the Adams case is not binding on lawsuits filed under the ADA, the ruling will almost certainly come up as such cases are brought to court. How disability is defined also varies from state to state. In California, for example, the definition of disability under the state's Fair Employment and Housing Act is much broader than the current ADA definition, Spring says. As such, employees in California who may not be considered disabled under the ADA or Rehabilitation Act would be considered disabled under FEHA, and would be entitled to reasonable accommodation and protection from discrimination. This particular decision may ultimately affect how companies approach the evaluation of disability claims, says Spring. "The lesson of Adams vs. Rice is that employers must remember that the ADA does not just protect disabled employees, but it also protects employees who are regarded as being disabled and who have a record of having a disability," Spring says. Employers must make sure they understand how broad the ADA is when making employment decisions, he says. HR is integral in making sure the message is clearly communicated throughout the organization, and can lend a very helpful hand in these instances. "It often falls on HR professionals to educate and train managers and supervisors in this area, to minimize the risks of making a mistake," says Spring. "In addition, HR must try to make sure they are consulted on the difficult decisions, so that their expertise is not being wasted, resulting in subsequent litigation. This is an area where knowledgeable HR professionals can save their employers money and headaches."
August 4, 2008 Copyright 2008© LRP Publications |
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