Sex Deemed Major Life Activity Under ADA!!

Under the Americans with Disabilities Act, protected individuals are those who suffer from a significant impairment of a major life activity, or who are regarded as or have a record of suffering from such impairment. The question of what constitutes a major life activity has vexed federal courts. In its Williams v. Toyota Mfg. case, the U.S. Supreme Court said that in most cases, major life activities will not involve work, but rather consist of daily life activities, such as walking, speaking, eating, and the ability to care for oneself. Earlier this month, the District of Columbia Court of Appeals concluded that the ability to have sexual relations is also a major life activity.

In Adams v. Rice, the plaintiff was a State Department employee who sought an overseas posting. The State Department declined to allow her to serve overseas in certain countries because she was a breast cancer survivor, and the Department was concerned about the ability to provide follow-up medical care in developing countries. The plaintiff asserted that she was cancer-free, and sued under the Rehabilitation Act (this law applies to federal employers and contractors, and is interpreted the same as the ADA).

The trial court rejected the plaintiff’s claim, finding that she was not a qualified person with a disability as defined under the law. That court concluded that the plaintiff had no current medical issue, was not regarded as disabled by the State Department, and had no record of an impairment because her cancer surgery and recovery involved only several weeks. The D.C. Circuit reversed, concluding that the plaintiff had a record of an impairment of a major life activity.

In drawing this conclusion, the D.C. Circuit pointed to testimony from the plaintiff describing the impact of the surgery and follow-up care on her libido and sex life. She noted a fear of rejection based upon the surgery, as well as the side effects of anti-estrogen medication used as follow-up treatment. The court had no problem classifying sexual activity as a major life activity, even if the purpose of the activity is not related to reproduction. The fact that the employer had no idea of the plaintiff’s sexual impairment at the time it made its decision is irrelevant to the question of coverage under the law.

The above article originally appeared on the Employment Law Alliance site http://www.employmentlawalliance.com/en/node/2406.

Expanded definitions of coverage under the ADA, makes it more important than ever for employers to consult with employment law specialists prior to making employment decisions that involve workers who may or may not be covered. Although an employee may not come right out and say that they are experiencing problems in the sexual arena, there are so many conditions that can have this effect such as depression (even a mild case), hysterectomy, anxiety, stress, high blood pressure or certain medications just to name a few.

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Top Tips for Avoiding Legal Troubles with Employees

You can't afford to ignore or mishandle employment problems. A botched employment situation can cost you millions of dollars if it turns into a lawsuit. Protect yourself using these commonsense tips.

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3. Be consistent. Apply the same standards of performance and conduct to all of your employees. Successful discrimination lawsuits start when you treat workers in the same situation differently.

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6. Be discreet. Loose lips about employee problems are a surefire way to bring the law down upon your head. You could be sued for defamation, causing emotional distress, or creating a work environment that is hostile.

7. Don't punish the messenger. Employers get in trouble when they discipline whistleblowers or workers who complain of harassment, discrimination or unsafe working conditions. Take action to deal with the problem itself, not with the employee who brought the problem to your attention.

8. Keep good records. If a worker sues you, you'll have to not only remember and explain what happened, but also prove that your version of the story is accurate. To make your best case, keep careful records.

9. Take action when necessary. Once an employment problem comes to your attention, resist the temptation to hide your head in the sand. Take action quickly, before it turns into a real mess.

10. Adopt sound policies and follow them. An employee handbook is an indispensable workplace tool that can help you communicate with your employees, manage your workforce and protect your business from lawsuits.


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