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Twice this month, the U.S. Court of Appeals for the D.C. Circuit expanded the sweep of a “major life activity” under the nation’s antidiscrimination law for federal employees. First, the court said sleep qualified. Now sex is on the list. That is, disabilities that promote sleeplessness or the inability to have sex are covered by the 1973 Rehabilitation Act, the court ruled. Employment lawyers say the rulings open the door for a host of new discrimination claims and add ballast to cases that hinge on plaintiffs’ ability to prove that their disabilities substantially interferes with their everyday lives. “Employers will have to view the term ‘disability’ much more broadly,” says Victoria Zellers, a partner in Cozen O’Connor’s Philadelphia office. Zellers says many of the cases brought under the Rehabilitation Act and the Americans with Disabilities Act, which protects private employees, wash out on summary judgment because employees fail to clear the first hurdle: proving they are disabled. In some circuits, the statute is construed to cover those who can’t care for themselves, perform manual tasks, walk, see, hear, speak, breathe, learn, or work. The Centers for Disease Control and Prevention estimates that 10 percent of American adults suffer from a sleep disorder, and at least twice as many suffer from sexual dysfunction, whether physical or psychological. “This could mean a lot more ADA cases go to trial,” Zellers says. In a July 18 opinion, Judge David Tatel, quoting Genesis, pronounced sex a “significant human activity, one our species has been engaging in at least since the biblical injunction to ‘be fruitful and multiply.’ ” In stating the obvious, the appeals court became the second in the country to answer a question the Supreme Court circumvented a decade ago in Bragdon v. Abbott in which the majority found that reproduction — the end, but not the means — rated as a major life activity. Tatel, writing again for the majority in a July 1 opinion, aligned the court with at least three other circuits on the issue of sleep. “Sleeping is unquestionably a significant activity—human beings spend roughly a third of their lives doing it,” Tatel wrote in Desmond v. Mukasey. “And it is certainly important.” The court, reversing circuit precedent, also found that plaintiffs are not required to show that their sleep disorders affect their waking activities, in order to bring a discrimination claim. The court’s drift toward a broader definition of disability comes as Congress is considering legislation that would aggressively expand coverage for employees bringing claims under the Americans with Disabilities Act, which protects private employees from discrimination based on disability. The legislation would junk four Supreme Court decisions that lawmakers say ignored Congress’ intent when it passed the Americans with Disabilities Act 18 years ago, lessening the burden on claimants to show how their disabilities affect them. The House passed the ADA Amendment Act in June, by a vote of 401-17. The Senate had its markup earlier this month. CLEARANCE DENIED The D.C. Circuit’s July 18th ruling was a victory for Kathy Adams, a lawyer in Piedmont, S.C., who sued the State Department for discrimination in 2005, after she was refused clearance to serve in the Foreign Service. She was diagnosed with breast cancer in August 2003, soon after receiving notice that she had passed her written and oral examinations. She underwent a mastectomy, and two months later, her fallopian tubes and ovaries were removed. By October 2003, when she received a letter assuring her of an appointment to the Foreign Service, Adams was cancer-free. When Adams informed the State Department of her bout with cancer, she was denied medical clearance, despite her doctors’ assurances that she was healthy. The district court dismissed her claim last year, reasoning that the cancer did not qualify as a disability because it wasn’t long-term or permanent. Significantly, the D.C. Circuit found that her history with cancer was enough, provided she could show it continued to limit a major life activity. Adams, in a declaration, said the experience had “crippled indefinitely and perhaps permanently” her ability to enter into romantic relationships. “Our client just wept when we read the [D.C. Circuit] decision to her,” says Adams’ lawyer, David Shapiro, of Swick & Shapiro. “Here’s a person who came to the conclusion she wanted to serve the country, she’s well qualified to do so, and she’s denied because she had cancer?” He says Adams wants to be hired into the Foreign Service with a salary equivalent to the experience she would have accumulated had she been cleared in 2003. A spokesman for the U.S. Attorney’s Office for the District of Columbia, which handled the case, says the decision is under review. Shapiro says he was less impressed with the panel’s pronouncement on sex than its finding that her history of cancer withstood the statute’s requirement that the claimant show a “record” of impairment. “They discriminated against her based on a history — and this is exactly what the statute is supposed to guard against,” Shapiro says. Judge Karen LeCraft Henderson, in her dissent, said she would not have reached the question of whether sex qualifies as a major life activity because Adams failed to show that her impairment had limited her before the State Department rescinded the offer.

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