LawyersUSA

A cancer survivor who lost a government job opportunity due to her history of breast cancer can sue for disability discrimination under the Rehabilitation Act, the D.C. Circuit has ruled in denying summary judgment to the U.S. State Department.

The applicant was accepted as a candidate for a position with the Department's Foreign Service branch. The position required her to be "available to serve in assignments throughout the world" and to deal with the deprivations of "hardship posts" in remote overseas locations.

Soon after her acceptance and medical clearance the applicant was diagnosed with breast cancer and treated surgically. The cancer was removed and her doctor cleared her for work.

But the State Department revoked her medical clearance on the grounds that she could not receive follow-up care at overseas locations – care that the Department mistakenly assumed she required.

The applicant sued under the Rehabilitation Act. She claimed that she had been discriminated against due to her history of breast cancer.

The government argued she didn't qualify as "disabled" under the Act, and that her claimed lack of sexual activity due to the mastectomy wasn't the impairment of a "major life activity" under the Act.

The court disagreed.

"Congress amended the Rehabilitation Act in 1974 to cover not only those individuals with impairments that substantially limit a major life activity, but also those having 'a record of such an impairment,'" the court said.

Further, "[a]s 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."

Here, "[v]iewed in the light most favorable to [the applicant], the record shows (1) the State Department knew [she] 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 [her] employment because of her cancer history."

The court cited similar cases from the 5th Circuit.

U.S. Court of Appeals, D.C. Circuit. Adams v. Rice, No. 07-5101. July 18, 2008. Lawyers USA No. 99310354. Click here for the full text of this opinion.