Is Sex a "Major Life Activity"? Why a Claim of Disability Discrimination Turns on the Answer to this Question

By SHERRY F. COLB


Wednesday, Aug. 6, 2008

Earlier this month, the U.S. Court of Appeals for the D.C. Circuit held, in Adams v. Rice, that for purposes of the Rehabilitation Act, sex constitutes a “major life activity.” One of the issues that this ruling highlights is the odd relationship between the part of the law that prohibits disability discrimination and the part that defines plaintiffs’ membership in the category of disabled individuals.

Unlike most other federal laws that restrict discrimination, the disability-related statutes require that, to succeed in court, plaintiffs must belong to a victim group. Though this “membership” requirement addresses some of the difficulties that surround other anti-discrimination statutes, it also creates some oddities of its own.

Kathy Adams and the Revocation of Her Position with the Foreign Service

The plaintiff in Adams is a woman who applied for the U.S. Foreign Service, scored extremely well on the entrance examinations, and received medical clearance to join. Soon after her acceptance, however, she was diagnosed with breast cancer and had to undergo surgery and other treatment for it. Upon hearing about her breast cancer, the State Department revoked her medical clearance and thus disqualified her from the Foreign Service.

Adams brought suit under the Rehabilitation Act of 1973. She claimed as her disability the cancer from which she had suffered prior to successful treatment. The trial court granted summary judgment to the defendant, finding that Adams did not have a record of disability for purposes of the Rehabilitation Act.

Under the Rehabilitation Act, federal agencies may not discriminate in employment against disabled individuals. As with the broader and more recently enacted Americans with Disabilities Act, to trigger the application of the Rehabilitation Act, a complaining party must first demonstrate that he suffers from a disability (or has a record of a disability or is perceived by the defendant as having a disability). Like the ADA as well, the Rehabilitation Act defines a disabled individual as one who suffers from a physical or mental impairment that substantially limits one or more of that individual’s major life activities. If an individual has neither a disability nor a record of disability and is also not perceived by the defendant as disabled, then he has no basis for a lawsuit.

It is undisputed among the parties in Adams that cancer qualifies as a “physical impairment” for purposes of the law. The controversial question is whether the impairment “substantially limit[ed]” one or more of the plaintiff’s “major life activities.” The major life activity limitation that Adams alleged, and that the Court of Appeals accepted as qualifying under the statute’s requirements, was the sexual dysfunction that she said resulted from a combination of surgery (a mastectomy), which affected her body image and self-esteem, and medication (tamoxifen), which affected her libido.

The Court of Appeals agreed that an inability to become involved in sexual relationships represented a substantial limitation on a major life activity and that Adams’ discrimination claim therefore should have survived the State Department’s motion for summary judgment.

The Relevance of Substantial Limitations on Major Life Activities

It is hardly surprising to learn that a court considers sexual activity to be a major life activity or that the plaintiff’s incapacity represents a substantial limitation on this activity. The strangeness of the case has more to do with the disability law itself than with any of the particulars of Kathy Adams’s situation.

It is peculiar that under the federal law barring discrimination on the basis of disability, it is somehow necessary for Adams to prove not only that she had a record of cancer on the basis of which the State Department discriminated against her but also that the cancer (or its treatment) destroyed her sex life. Why should the impact of the cancer on Adams’s sexuality have any bearing on whether the State Department unlawfully discriminated against her when it disqualified her from the Foreign Service on the basis of her status as a cancer survivor?

The answer lies in the fact that the law barring disability discrimination protects only those who suffer from an existing or historical impairment (or a perceived impairment) that has a very significant impact on the individual’s major activities. It is not enough, in other words, to experience or to have experienced an impairment. The impairment must have concretely diminished the quality of the person’s life in some concrete way.

To examine the significance of this requirement, it is useful to contrast the laws against disability discrimination with the laws that prohibit other sorts of discrimination.

Classification Discrimination Versus Class Discrimination

Consider the federal laws that prohibit discrimination on the basis of race, sex, religion, and nationality. Anyone is qualified to allege discrimination on the basis of these categories, regardless of her race, sex, etc., because what triggers the law is the defendant’s reliance on a forbidden classification rather than the particular class into which the plaintiff happens to fall. This means, for example, that white people can bring lawsuits against employers for failing to hire them on the basis of race, and it means that men can bring similar suits for failure to promote them on the basis of sex. The same is true for dominant religions and nationalities.

Because most anti-discrimination law focuses on classifications, rather than on membership in a disadvantaged class, powerful plaintiffs can sometimes appear to be exploiting a law that was designed to protect someone very different. When a white person brings a suit claiming race discrimination, because – for instance – an affirmative action policy led to his rejection in favor of an African-American candidate with worse credentials, there are those who view such a suit as a perversion of the law.

Prohibitions against race discrimination, after all, did not arise in a vacuum. What makes race discrimination invidious is the consistent pattern of persecution of non-whites following a history of their enslavement as live property. When a white person complains that he lost an opportunity because he is white, the complaint therefore lacks at least some of the moral force that generated protection against discrimination in the first place. To put it differently, it is by many lights no more objectionable to deny a white person a job because he is white, than it would be to deny that same person a job because he is tall or because he grew up in a wealthy and adoring family that lacked for nothing. None of these bases for discrimination is relevant to a person’s fitness to serve in a job, yet neither does any of them cry out for a legal remedy.

The alternative to prohibiting discrimination against any person on the basis of a specified classification is to prohibit discrimination only against a particular class of people. In the case of race and sex, for example, a law focusing on class rather than classification might prohibit discrimination against African-Americans on the basis of their race, and against women on the basis of their sex. In such a regime, members of the “advantaged” race and sex would – at least for purposes of their race and sex – join all of the other people who do not suffer systematic oppression and must therefore grin and bear discrimination on the basis of arbitrary, job-irrelevant traits. Those who find discrimination suits by whites and men (for race and sex, respectively) perverse might like to see this change in the law.

There is, however, at least one downside to such an approach. If only African-American plaintiffs could sue for race discrimination, then a plaintiff would have to prove that he truly was an African-American. To require such proof, the law would necessarily have to define who does and who does not qualify as black. And that is a particularly fraught (and arguably objectionable) exercise, especially given the complicated relationship between the biological “reality” of race and the social practice of race discrimination.

One can imagine disturbing proof problems in cases in which people must show that they are black, while opponents attempt simultaneously to negate that racial identity. By prohibiting discrimination on the basis of a classification (race), rather than requiring membership in a class (African-Americans), the law avoids the difficulties inherent in requiring people to prove their racial bona fides. The same would be true of applying a religious test or even, now that a man has given birth, a sex test. The law might otherwise have to tell us who gets to qualify as a black person, a woman, or a non-Christian.

In the case of disability law, however, the law does, in fact, tell us who gets to qualify as disabled – embarking on exactly the inquiry that other discrimination laws avoid. A plaintiff (if she rests on the disability or “record of disability” portions of the relevant statutes) must demonstrate that she truly is disabled before she can use the law to hold the discriminator accountable. And a disability must have a significant impact on the disabled person. For example, many years ago, I had the peculiar experience of being assigned to take the New York bar examination in a room reserved for disabled people because of my need to have some fruit juice during the exam (in contravention of the no-beverage rule in the regular exam room). Though I might require sugar somewhat more frequently than the average person, it struck me as inaccurate to describe me as therefore being “disabled” in any meaningful sense.

When the law seeks to extend protection only to those who are truly disadvantaged, it – perhaps inadvertently – compels plaintiffs to adopt a victim identity. Rather than saying only that she had cancer and that she survived it and can now do anything that anyone else can do, Kathy Adams was compelled to tell the court (and thus the public) about her fears of sexual intimacy and the debilitating impact of her surgical disfigurement and medical side effects. Rather than focusing on the misdeeds of the State Department, Adams was forced to focus on herself and her limitations.

Perhaps this is fair. If a person survives breast cancer and has no further difficulties, then maybe she does not need the law to protect her from discrimination on the basis of her cancer. She is not in fact disabled and, apart from the period of time surrounding diagnosis and treatment, she never really was. We do not have a general law to protect against arbitrary and irrational discrimination, and the refusal to hire a perfectly healthy person because she used to have cancer would seem to fall into that category, rather than representing an instance of disability discrimination.

To avoid forcing someone like Adams to portray herself as a victim, one might favor a broader version of our approach to race discrimination – prohibit all discrimination on the basis of arbitrary characteristics having nothing to do with a candidate’s fitness to perform a job. Don’t require a plaintiff to prove anything about her own identity. The person on trial is the defendant.

To take this route, however, could affect the smooth operation of the labor market, because every person suffering an adverse employment event might be tempted to sue. This helps explain the designation of particular categories meriting protection (sex, race, etc.) and it may provide a reason (if not a complete justification) for the disability laws’ requirement that a plaintiff prove not only that an employer discriminated against her because of a disability but that the plaintiff in fact is disabled and suffers substantially from that disability in a manner wholly disconnected from the subject of the suit.


Sherry F. Colb is a Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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