Love is major

July 29, 2008

Just finished reading Adams v. Rice, the D.C. Circuit’s pronouncement that sex is, indeed, a “major life activity” under federal disability law. A story in this week’s Legal Times says Adams, and another case that bestowed the same status on sleeping, could lead to a lot more litigation.

If that’s true, we should be almost nine years into the surge already. The 9th Circuit decided that sex was a major life activity back in December 1999, in McAlindin v. County of San Diego. (Stop smirking, it was not a Kozinski opinion. It was authored by Judge Dorothy W. Nelson, former dean of USC Law - my alma mater - where her image smiled kindly from the wall of the main lecture hall. With her prim blue suit, her tilted head and her neatly folded hands, Dean Dottie looked like she was about to offer us all a nice cup of tea. What better person to declare that sex is a major life activity?)

But, back to the D.C. Circuit. Kathy Adams says she was turned down for a Foreign Service post because she’s a breast-cancer survivor. The lower court threw out her case because being a cancer survivor is not a disability.

Adams, while she’s “fit as a fiddle” otherwise, said she’s still disabled because “the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease,” she said, “my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.”

That, combined with Adams’ history of cancer, was good enough for the D.C. Circuit, which remanded the case. No matter that the government insisted it didn’t know Adams wasn’t interested in sex.

Curious, isn’t it? If it hadn’t been for her lack of a love life, the State Department would have been free to discriminate against her based on her prior battle with cancer.

I think I will have that cup of tea now.

BARBARA GRZINCIC, Managing Editor/Law

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Posted by joe_bacchus | Filed Under D.C. Circuit, law | Leave a Comment 

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