BREAKING: Sex Is A Major Life Activity

(HT: LawMemo via Workplace Prof Blog)

In order to prove you have a disability in federal court, you generally have to be able to show 2 things (and this is obviously generalizing a lot):

1. You have some type of impairment.
2. That your impairment substantially limits a ‘major life activity’.

Of course, the laws governing disability discrimination neglect to define either of these terms, which means courts have, over the years, had a lot of fun with them. Especially that second requirement.

As it stands right now, breathing, eating, walking, lifting, caring for ones self all count as “major life activities.” AIDS is a disability for straight women, because it impairs the major life activity of reproduction, but not for gay men, because it doesn’t impair anything but remaining alive, which, interestingly, is not a major life activity. Working is (usually) a major life activity, but working more than 40 hours a week generally isn’t. (How one lawyer convinced a bunch of other lawyers of that is a total mystery to me.) In one case involving a mentally handicapped Wal-Mart applicant, the 11th Circuit said they weren’t sure if “thinking, communicating and social interaction are ‘major life activities’ under the ADA.”

Last month, the D.C. Circuit Court of Appeals made headlines when it held that sleeping was a major life activity. Seriously.

Well, now the D.C. Circuit has done it again: Having sex, apparently, is a major life activity. In Adams v. Rice, the court noted that a woman recovering from cancer, whose symptoms and treatments were messing with her sex life had a valid disability.

All this confusion over what constitutes a disability may be “cleared up” by an amendment before Congress right now, which would define the definition to include anything that “materially restricts” a “major bodily function.” The amendment’s proponents think this language would encompass things like AIDS and cancer automatically. I wonder if we’re just giving the courts two more phrases to ponder over.

Back to sex in D.C. – One of the judges issued a dissent – not arguing that sex isn’t a MLA, thank God – but rather saying that the plaintiff didn’t show any interference with her sex life until long after the alleged discrimination took place. This is quite interesting, and is a sub-issue that will probably outlast any amendment made to the ADA.

Either way, an appellate court has once again explained something most of us took for granted. Employment law is such a great lens through which to view the difference between the judicial system and real life.

7th Circuit: Woman Fired After In Vitro Treatments Has Valid Cause for Suit

The Seventh Circuit Court of Appeals here in Chicago is known for having an aversion to the typical “bright line” rulings issued by other circuits (and, often, their bosses in D.C.). The judges say they like to think the cases through, instead of adhere to some “easy-to-follow” method spelled out in a previous case that just ends up confusing things*.

Whether that’s 100% true is debatable. But in an opinion released this week, they certainly followed that tack, and in the process issued a ruling that did a great job defining employee’s rights under the Pregnancy Discrimination Act.

The opinion in Hall v. Nalco, written by Judge Sykes, holds that in-vitro fertilization treatments are covered under the Pregnancy Discrimination Act.  Which means, basically, that employers can’t treat you differently (or fire you) for getting IVF treatments. That probably doesn’t seem revolutionary, but it suprised me.  Here’s why:

The plaintiff, a secretary who was fired when her office was merged with another, claimed that her firing was discrimination because it was based on her “absenteeism” related to her in-vitro treatments. The plaintiff argued that infertile women are protected under the Pregnancy Discrimination Act, which extends discrimination protection based on sex (the gender kind, not the “doin’ it” kind) to include pregnancy-related conditions.

Most people (including me) heard that argument and stopped paying attention, because the Supreme Court had already ruled that infertility is gender-neutral (i.e. the same for boys and girls – like a Slinky), which means it’s not related to “sex” and not protected. So, done deal. Plaintiff loses. That’s why the District Court threw the case out in the first place.

Well, not so fast. You can’t just say “infertility isn’t protected” and close the book. The Plaintiff’s “absenteeism” was related to IVF treatments. Show me a guy getting IVF treatments. It’s impossible – we don’t have the parts. So, says the 7th Circuit, who cares if there’s a “rule” about infertility?  This termination was about pregnancy.

Plaintiff gets to sue.

Agree or not, you have to love it when the judges (and their clerks) really pay attention to the case law.  It doesn’t always happen.  In this case, the Plaintiff’s complaint didn’t even separate IVF from “infertility” (see note 3 of the opinion). But because the court saw a distinction, we have an opinion that will do so much more for understanding what the PDA covers than any “bright line” rule ever would.

* See Paul W. Mollica, “Employment Discrimination Cases in the 7th Circuit“, 1 Emp. Rights & Emp. Policy J. 63, 100 (1997).