Two cases involving two hot-button issues for women — infertility treatment and breast cancer — obtain breathtakingly progressive results in respective decisions from the D.C. and Seventh Circuits.
In Hall v. Nalco Co., No. 06-3684 (7th Cir. July 17, 2008) (attached), the facts are elegant enough: the employee, a secretary who took off time from work for in vitro fertilization (IVF) treatments, lost her job in an office consolidation. The summary judgment record reflected that the decision maker (named Baldwin) took the IVF treatment directly into account in making the decision.
“Baldwin told Hall her termination ‘was in [her] best interest due to [her] health condition.’ Prior to informing Hall of her termination, Baldwin discussed the matter with Jacqueline Bonin, Nalco’s employee-relations manager. Bonin documented this conversation; her notes reflect that Hall had ‘missed a lot of work due to health,’ and more specifically, in a section relating to Hall’s job performance, cite ‘absenteeism-infertility treatments.’ Dwyer, the secretary who was retrained, was a female employee who since 1988 had been incapable of becoming pregnant.”
The district court judge concluded (as other courts had done before) that because infertility is a gender-neutral condition, it could not serve as the basis for a Title VII sex discrimination claim.
The Seventh Circuit panel reverses (and here, I cannot help but mention that the opinion’s author, Judge Sykes, and co-panelist Judge Rovner are both women.) In an “a-ha” moment worthy of the sainted Justice Brennan, the panel realizes on a close reading of the statute and International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991), that Congress has defined adverse actions motivated by pregnancy and related conditions as “sex” discrimination: that is, “because of sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Because child-bearing capacity is within the ambit of “related medical conditions,” discrimination on that ground is illegal.
For good measure, the panel notes the commonplace fact that IVF treatments are given only to women.
“Employees terminated for taking time off to undergo IVF-just like those terminated for taking time off to give birth or receive other pregnancy-related care-will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. See The Merck Manual of Medical Information, suprat 1418-19; Mayo Clinic Family Health Book, suprat 1069-70. Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.”
Holy Hannah (or, perhaps more fittingly, Sarah)! If this reasoning takes root, will it require the courts to revisit the myriad cases where employers got away with firing employees for pregnancy-related absenteeism? I’m not holding my breath.
In Adams v. Rice, No. 07-5101 (D.C. Cir. July 18, 2008), the plaintiff is described as “a candidate for the United States Foreign Service, [who] passed the required entrance examinations and received a medical clearance, only to learn thereafter that she had been diagnosed with stage-one breast cancer. ” Though she recovered with treatment — describing herself as “fit as a fiddle” — the State Department determined that she could not be posted overseas, out of concern that if the cancer returned Ms. Adams would not be able to get adequate medical attention in many places that she might be stationed. Because she could not be certified for overseas assignment, her application was denied. On her subsequent lawsuit, brought under the Rehabilitation Act, the district court granted summary judgment to the agency, holding as a matter of law that Ms. Adams was neither disabled nor regarded as disabled, and had no record of a disability.
In a 2-1 decision signed by Judge Tatel, summary judgment reverses. The panel majority agrees with the district court and dissent that this cancer survivor was neither actually nor regarded as disabled, as the State Department knew that the immediate health crisis had passed. But the panel majority finds that the record presents a triable issue of fact about whether Adams lost out on the Foreign Service because of a record of a disability. (The dissent is from a female panelist, Judge Henderson, so shelve the sisterhood theory.)
The majority and dissent differ about whether a “record” means (narrowly) a mere medical file or (more broadly) a history of disability. Resolving the issue in favor of the broader reading, the court then analyzes whether the breast cancer substantially limited Adams in one or more major life activities. And here the majority takes an important step towards resolving a rupture in the case law. Some courts have held that the “major life activity” must be one that potentially affects work performance. The majority, bless them, clarifies that this is true only where the employee seeks a workplace accommodation:
“[W]hen the employee alleges pure discrimination on the basis of a disability the claimed limitation need have nothing to do with the employee’s ability to work. By contrast, when an employee seeks a workplace accommodation, the ‘accommodation must be related to the limitation that rendered the person disabled.” Nuzum v. Ozark Auto. Dist-ribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005). The reason is this: as the ADA’s legislative history makes clear, the substantial limitation and major life activity requirements act as statutory filters distinguishing those suffering from relatively serious impairments from those with ‘minor, trivial impairment[s].’ H.R. REP. NO. 101-485, pt. 2, at 52 (explaining that under the ADa person with ‘a simple infected finger is not impaired in a major life activity’). Accordingly, if Adams can show that her impairment substantially limited an activity qualifying as a ‘major life activity’ under the Act-work-related or not-then she qualifies as disabled under the statute.”
The temporary inability Adams suffered in caring for herself during recovery was not considered a “major life activity.” But the majority credits the employee’s second argument that she was substantially limited in the arena of “sexual relations,” as the plaintiff’s declaration attests:
“Like many breast cancer survivors, whether by virtue of my discomfort with the way my body looks, loss of sensation after my surgeries, my deep-seated fear that prospective suitors will reject me because of my history of cancer, loss of a breast, and current physical appearance, or the side effects of medication that causes loss of libido, I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease, my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.”
The majority holds, on the authority of Bragdon v. Abbott, 524 U.S. 624 (1998) (a Title III ADA case about a dental patient with HIV), that sexual intimacy is a major life activity:
“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.” Genesis 1:28. 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.”
Because the Justice Department lawyers (either in good taste or fatal arrogance) did not contest Adams’ self-description of her intimate life, the majority holds that the summary judgment record on this point goes to the plaintiff.
Finally, the majority also rejects the State Department’s backstop argument that it could not be held liable when the plaintiff did not forewarn it of the precise nature of her impairment:
“Notably the Court [in Bragdon] said nothing about whether the dentist knew or cared that the plaintiff was limited in the major life activity of reproduction-and that limitation had nothing to do with the dentist’s refusal to treat the plaintiff-yet the Court concluded that the dentist could be found liable just the same. For the Court, it was enough that (1) the dentist knew the plaintiff had a physical impairment (HIV), (2) the impairment did, in fact, substantially limit a major life activity, and (3) the dentist denied treatment because of the plaintiff’s impairment. The same analysis applies here. Viewed in the light most favorable to Adams, the record shows (1) the State Department knew Adams had a record of an impairment (breast cancer), (2) the impairment did, in fact, substantially limit a major life activity, and (3) the State Department denied Adams employment because of her cancer history.”
The majority also holds that Adams’ argument did not fail on account of a failure to administratively exhaust it (as federal employees are required to do), i.e., including the major life activity in her charge.
And as the majority concludes, it is not necessary that the employer understand the precise impact that a known disability has on an employee’s life to sustain a claim of disability discrimination:
“This conclusion makes sense because creating a knowledge requirement in situations involving pure discrimination would shield the most ignorant, irrational, and prejudiced employers-precisely the kinds of employers Congress intended the Act to reach. Under the government’s theory, an employer could lawfully fire an employee solely for revealing that she had recovered from ovarian cancer after undergoing a hysterectomy, so long as the employer didn’t know the effect such treatment has on reproduction. A better informed employer, however, would suffer the full consequences of his decision. Congress could not have intended ignorance to act as a safe harbor. Moreover, in the government’s view, to preserve a claim under either the Rehabilitation Act or the ADA, cancer survivors would have to announce to employers, ‘Yes, I once had cancer, and it substantially limited me in the following major life activities.’ Absent such disclosure, the employer could discriminate at will simply because he didn’t like having cancer survivors around the office, or because he harbored ‘the irrational fear that they might be contagious.’ Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987). As amici point out in their brief, Congress enacted the Rehabilitation Act and the ADA to forbid such blatantly discriminatory actions, intending to protect cancer survivors who qualify as disabled under the statute from employment discrimination based on myths, fears, and stereotypes about the disease.”
Hurrah for compassion and common sense! Kudos to the amici, the American Cancer Society and AARP.