23 07 2008

I saw this today on Instapundit, and read the article.  Here’s the lede:

Disability protections ordered for sexually incapacitated

WASHINGTON — A South Carolina breast-cancer survivor has beaten the State Department and convinced judges in Washington that the inability to have sex is a disability protected under federal anti-discrimination laws.

The new appellate-court ruling gives Piedmont, S.C., resident Kathy E. Adams another potential shot at serving overseas. More broadly, the ruling cracks open the courtroom door for additional legal challenges by those who are sexually incapacitated.

“I think it’s a major victory for former cancer patients, and for anyone who has had their sex life disrupted,” Adams’ attorney David H. Shapiro said Tuesday.

Adams, herself a practicing lawyer, wants to compel the State Department to hire her as a foreign service officer and provide back pay. She’ll now go before a jury and trial judge, unless the State Department relents first.

“I think their goose may be cooked,” Shapiro said.

In its 2-1 decision, issued Friday, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Adams has a case against the State Department. Most significantly, the influential D.C. circuit court ruled for its first time that laws that protect people with disabilities from discrimination cover “sexual relations.”

The court goes on to assert that sex is a “significant human activity.”  Well, duh!  I’m more interested in why this disability was the focus of an employment suit against the State Department.  Now, Lord knows I hold no great respect for the State Department as an institution, but as an employer, it deserves the same respect as any other employer.  As far as I can tell, the potential employee was denied a State Department FSO posting because as a recovering cancer patient, the Department couldn’t guarantee access to medication and treatment.  “The department could not guarantee (her) access to the required medical follow-up and surveillance at all overseas assignments,” a State Department nurse testified.

She sued, alleging that her cancer and subsequent treatment affected her desire to have sex (not the ability, although the reproductive parts were surgically removed).  But that wasn’t the reason why her posting was denied.  It appears that the parties agreed that the reason the posting was denied was not contested, and that the State Department did not know about the professed disability.

In this case, the State Department knew about Adams’ breast cancer but didn’t know how the cancer treatments impaired her sex life.

Adams underwent a mastectomy, had her ovaries and fallopian tubes removed, gained weight and felt her libido wither.

“I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening,” Adams, who is single, stated in a declaration.

Apparently, the court has ruled that any disability, whether known to the employer or not, even if the alleged disability was not part of the alleged discrimination.

Good Lord.  Now any disability, known or unknown, subjects an employer, who makes a rational decision about employee assignments, is liabile for that decision, even if they have no idea that the potential employee is “disabled.”  Of course, if the DOS posts her to East Trashcanistan, and she gets complications from the cancer, they can be sued for that as well, even though they were ordered to hire her in the first place.  This was not the intent of the ADA, and is ridiculous overreaching by the court.




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