Thanks to Kathy Adams and the D.C. Circuit, the ability of an individual to engage in sexual relations has suddenly become a sensitive issue for employers seeking to avoid disability discrimination suits without violating the privacy of employees' personal lives.

In July, the court ruled in Adams v. Rice that “sexual relations” qualifies as a major life activity for determining if an individual is disabled under the Rehabilitation Act of 1973, which governs disabled federal employees. As a result, more pillow talk figures to spill over from the bedroom to the courtroom.

“This opens the door for more employees to claim they are disabled. We could see a whole new class of claims from employees who have a medical impairment that affects their ability to engage in sexual relations,” says Victoria Zellers, a member at Cozen O'Connor.

At the same time, the court clarified that an employer, the U.S. State Department in this instance, can be held liable for discrimination based on an individual's “record of” a disability.

“This is very troublesome,” says William Schurgin, a partner at Seyfarth Shaw. Schurgin explain that the decision suggests an employer should anticipate that an employee could claim an impairment had become a disability long after an employment decision is made. “Even if the employer had no reason to believe that [the impairment would develop into a disability], the employer could be held liable.”

The decision comes on the heels of another D.C. Circuit opinion, Desmond v. Mukasey, which added sleeping to the list of major life activities covered under the Rehabilitation Act. The Adams ruling also comes as Congress is considering legislation to amend the Americans with Disabilities Act (ADA). The bill would broaden the types of conditions that would be considered disabilities by providing that major life activities encompass
major bodily functions, including reproductive functions.

Hidden Record
The Adams case traces back to April 2003, when Kathy Adams passed the entrance examination and received a medical clearance as a candidate for the U.S. Foreign Service. But later she was diagnosed with breast cancer, for which she was treated. The State Department expressed concern that many of its overseas posts lacked the follow-up care it believed Adams might require, so it revoked her medical clearance, disqualifying her from the Foreign Service.

Adams sued under the Rehabilitation Act, which prohibits federal agencies from discriminating against disabled employees, including those with a “record of” a disability. Adams said surgical treatment had rendered her cancer-free. She said she had no particular limits on her work activities but remained limited in the major life activity of sexual contact.

The District Court granted summary judgment to the State Department, concluding that Adams had no record of a disability as defined in the statute. The D.C. Circuit reversed that decision and remanded the case to District Court.

The D.C. Circuit noted that Congress amended the Rehabilitation Act in 1974 to cover individuals with impairments that substantially limit a major life activity and those having a “record of” such an impairment.

The court said: “The 'record of' definition was tailor-made for plaintiffs who, like Adams, claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it.”

The decision echoed the 9th Circuit's 1999 action in McAlindin v. County of San Diego (1999), which held that “interacting with others” is a major life activity. The D.C. Circuit relied heavily on the Supreme Court's holding in 1998 in Bragdon v. Abbott that human reproduction qualifies as a major life activity.

“At the risk of stating the obvious,” Judge David Tatel wrote, “sex is unquestionably a significant human activity.” With the ruling, the D.C. Circuit rejected the government's argument that it was unaware of all the consequences of Adams' disability.

Rocky Road
The logic of the ruling baffles Steve Miller, a partner at Fisher & Phillips.

“The State Department determines that Adams is not physically capable of doing the job,” he says. “But the court said they had an obligation to dig deeper, to find out, 'because you are a cancer survivor, how does that affect you?' No employer is going to go down that road and ask an individual about her sex life.” Just how the government was to know the extent of Adams' sexual disability and thus avoid a possible claim of discrimination is a question the court did not answer. That concerns employment experts.

“This means that employers will have to be more cautious in addressing individual cases where someone has an impairment that appears to have been cured, but possibly could result in substantial limitations to a major life activity,” Schurgin says.

That may require assumption by the employer, because conditions that didn't previously rise to the level of disability now likely will. Zellers suggests that when hiring, firing or promoting an individual, the employer should assume that a condition such as cancer, a heart ailment or depression might be a disability.

“The [Adams] decision is a precursor to where we're going,” Zellers says. “The D.C. Circuit made the term disability broader by adding sexual relations to major life activities, and Congress is going to do more.”