If sleep disorders and sex problems can be used as criteria for filing disability claims, as courts have held, "being male" could also be a legally recognized disability.
So claims Louis Solomon, a partner and co-head of the Global Litigation Department at Proskauer Rose, who believes "maleness" is on its way to becoming a new category for disability claims.
Men, he argues, have a greater susceptibility to certain diseases, a shorter life expectancy and a testosterone level that predisposes them to more aggressive behavior -- all factors that could be classified as a disability.
"A good-faith argument could be made -- and I predict it eventually will be made -- that being male would meet the broadest definition of disability," said Solomon.
That's quite a stretch, said management-side attorney Michael Ossip, of Philadelphia's Morgan Lewis, who believes that a new breed of disability claims is on the horizon, just not male-specific.
Ossip noted that employers are bracing for more disability claims in light of a new federal law that broadens the definition of disability, thereby allowing more workers to file Americans with Disabilities Act (ADA)-based discrimination claims.
The Americans With Disability Amendments Act, which passed last month and goes into effect on Jan. 1, lessens the burden on employees to prove they're disabled, therefore making it easier for them to bring claims.
Under the new law, workplace accommodations will be required for any employee with "an impairment that substantially limits one major life activity" regardless of whether medication or medical equipment substantially mitigates that disability. In addition, workers with episodic disabilities will still come under the protection of the ADA based on what their impairment is like when it is active.
Management-side lawyers say that the new law essentially wipes out several employer defenses to ADA claims, which had largely been won by employers in the past because it was so tough for employees to prove a disability.
"There's no question that this bill is going to greatly expand the class of people who are covered by the law," Ossip said. "I think it's going to increase litigation. It's going to make it much more difficult for employers to make day-to-day decisions on whether an employee is disabled and whether they are in fact entitled to accommodations."
He added: "I think we just have to play it out."
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A New Potential Disability: Being Male?
Taking effect next year, a new law lessens the burden on employees to prove they're disabled, making it easier for them to bring claims
The National Law Journal
October 7, 2008
