Disability protections ordered for sexually incapacitated

McClatchy NewspapersJuly 22, 2008 

WASHINGTON — A South Carolina breast-cancer survivor has beaten the State Department and convinced judges in Washington that the inability to have sex is a disability protected under federal anti-discrimination laws.

The new appellate-court ruling gives Piedmont, S.C., resident Kathy E. Adams another potential shot at serving overseas. More broadly, the ruling cracks open the courtroom door for additional legal challenges by those who are sexually incapacitated.

"I think it's a major victory for former cancer patients, and for anyone who has had their sex life disrupted," Adams' attorney David H. Shapiro said Tuesday.

Adams, herself a practicing lawyer, wants to compel the State Department to hire her as a foreign service officer and provide back pay. She'll now go before a jury and trial judge, unless the State Department relents first.

"I think their goose may be cooked," Shapiro said.

In its 2-1 decision, issued Friday, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Adams has a case against the State Department. Most significantly, the influential D.C. circuit court ruled for its first time that laws that protect people with disabilities from discrimination cover "sexual relations."

The ruling overturns a trial judge who'd dismissed Adams' case.

"At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to 'be fruitful and multiply,' " appellate Judge David Tatel wrote, adding a citation to the Book of Genesis.

Tatel concluded that sex is the kind of "major life activity" that Congress considered when it passed the Rehabilitation Act in 1973. The law, like the better-known Americans with Disabilities Act, prohibits discrimination against people with disabilities.

Lawmakers defined a disability as an impairment that "substantially limits" a major life activity. Courts still struggle to explain what that means. Last week, for instance, the D.C. appellate court determined that "sleeping" is a protected major life activity.

Walking, seeing and hearing, among many other activities, likewise have been identified as "major."

The new ruling comes from what's sometimes called the nation's second-highest court, meaning that many lawyers will be parsing its words.

"As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a major life activity," Tatel wrote.

A State Department spokeswoman said the department was still reviewing the decision.

Adams couldn't be reached to comment Tuesday.

The Russian-speaking Adams aced the State Department's Foreign Service written and oral exams in 2002, ranking seventh out of 200 candidates. Living about 15 miles south of Greenville, she was in line to start training in January 2004.

Before her training started, doctors diagnosed her with breast cancer. She underwent surgery, but the State Department subsequently denied her entry into the Foreign Service.

"The department could not guarantee (her) access to the required medical follow-up and surveillance at all overseas assignments," a State Department nurse testified.

State Department officials added, and the dissenting appellate judge agreed, that the department didn't know about Adams' sexual disability when it declined to hire her. The court majority, however, reasoned that "it makes no difference whether an employer has precise knowledge of an employee's substantial limitation" so long as the employer knows about the impairment.

In this case, the State Department knew about Adams' breast cancer but didn't know how the cancer treatments impaired her sex life.

Adams underwent a mastectomy, had her ovaries and fallopian tubes removed, gained weight and felt her libido wither.

"I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening," Adams, who is single, stated in a declaration.

McClatchy Newspapers 2008

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