Sexual Relations and Disabilities

Under the Rehabilitation Act (which applies to the federal government and federal contractors and subcontractors) and the Americans with Disabilities Act (which applies to other employers), it’s unlawful to discriminate against an employee who has a physical or mental impairment that substantially limits a major life activity, who is regarded as having this kind of disability, or who has a record of such a disability.  In a case that breaks new ground, the U.S. Court of Appeals for the District of Columbia has made a significant ruling in Adams v. Rice. 

A female candidate for the U.S. Foreign Service was given Class 1 clearance to “serve in assignments throughout the world.”  Because of her high scores on the Foreign Service’s rigorous entrance exam, she was ranked seven out of 200 candidates. 

She was diagnosed with stage-one breast cancer, had a mastectomy and simultaneous reconstructive surgery, and two months later as part of her treatment, had her ovaries and fallopian tubes removed.  In the future, she would need one pill of Tamoxifen per day, an annual mammogram, and a six-month clinical breast exam for five years. 

Her Class 1 clearance was changed to Class 5, which meant she was ineligible for unlimited work overseas.  This change was made because only 53% of all Foreign Service posts had surgeons and oncologists available to perform semi-annual breast exams.

The candidate sought a rarely-granted waiver.  In support of this request, her treating physician informed the State Department that the candidate had been successfully treated for early stage breast cancer, was in complete remission with an excellent prognosis, had no job limitations whatsoever, could undertake a full schedule of travel and work overseas for long periods of time, and didn’t need a surgeon or oncologist to perform the semi-annual breast exam.  It could be performed by any competent physician or nurse practitioner.  The State Department wouldn’t budge.

The candidate filed suit claiming disability discrimination.  The DC district court dismissed her case, finding that the candidate failed to prove she had a disability as defined by law.  She had a physical impairment alright, but it didn’t substantially limit a major life activity.

Wrong, said the DC Court of Appeals.  According to the candidate, due to the scarring from her mastectomy and reconstruction, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, and the psychological inability to enter into romantic relationships, her breast cancer and its treatment had rendered her completely unable to have sexual relations.   The DC Court of Appeals agreed and found that her condition was indefinite, perhaps permanent.

So, she had a record of a physical impairment (breast cancer) that substantially limited (as detailed above) a major life activity (sexual relations).