The U.S. Court of Appeals for the D.C. Circuit recently ruled for the first time that sleeping is a "major life activity" under the federal Rehabilitation Act.
Reversing its own precedent, the court also held that a plaintiff doesn't have to show that his sleep disability affected his waking activities in order to move forward with a discrimination claim.
While the court's decision in Desmond v. Mukasey, No. 03-01729, answered an open question in the circuit, perhaps more importantly, it rejected Department of Justice arguments that a plaintiff must meet a "higher burden" by showing that the sleeplessness has had some effect on his day-to-day activities, said Martin Desmond's counsel, Lisa Banks of Washington's Katz, Marshall & Banks.
A HOSTAGE SITUATION
"We argued a deaf individual, in order to show he is disabled, needs only to show he is substantially limited in the ability to hear," she said. "Similarly with sleep, we argued, and Judge [David] Tatel agreed, you need to show you are substantially limited in your ability to sleep and don't have to show that because of the sleep limitation, you're unable to work or it will somehow affect your day-to-day life, even though it probably will."
Desmond sued U.S. Attorney General Michael Mukasey after being told he would not graduate from the FBI Academy. He alleged that the FBI discriminated and retaliated against him because of a post-traumatic stress disorder that substantially limited him in the major life activity of sleeping. The PTSD resulted from a traumatic incident that occurred two years before he entered the academy: He was held hostage in his mother's house by an armed robber-rapist who repeatedly threatened to kill him and then return to rape his mother.
At the FBI Academy, Desmond did well in all of his classes, and an academy psychologist said his PTSD was treatable. But driven by fear for his mother's well-being and guilt at having left her side, according to Tatel's opinion, Desmond repeatedly tried to secure a post-training assignment to the FBI's Cleveland division. His inability to get orders closer to home, Desmond said, exacerbated sleeplessness occurring since the armed robbery.
Tatel wrote that sleep is "a vital life activity in its own right" just as human reproduction is. Federal regulations interpreting the Rehabilitation Act and the Americans With Disabilities Act, he added, supported the court's conclusion.
The panel also held that Desmond had presented enough evidence to persuade a jury that his PTSD was a substantial limitation on sleep and that the FBI's reasons for dismissing him -- that he lacked emotional maturity and a cooperative spirit -- were a pretext for its PTSD-based bias.
A jury, said the court, could conclude "that receiving two to four hours of sleep per night for five months constitutes a significant restriction on the ability to sleep as compared with ... the average experience of the general public."
Channing Phillips, a spokesman for the local U.S. Attorney's Office, which handled the case, said, "We're reviewing the decision and weighing our options."