BREAKING: Sex Is A Major Life Activity

(HT: LawMemo via Workplace Prof Blog)

In order to prove you have a disability in federal court, you generally have to be able to show 2 things (and this is obviously generalizing a lot):

1. You have some type of impairment.
2. That your impairment substantially limits a 'major life activity'.

Of course, the laws governing disability discrimination neglect to define either of these terms, which means courts have, over the years, had a lot of fun with them. Especially that second requirement.

As it stands right now, breathing, eating, walking, lifting, caring for ones self all count as "major life activities." AIDS is a disability for straight women, because it impairs the major life activity of reproduction, but not for gay men, because it doesn't impair anything but remaining alive, which, interestingly, is not a major life activity. Working is (usually) a major life activity, but working more than 40 hours a week generally isn't. (How one lawyer convinced a bunch of other lawyers of that is a total mystery to me.) In one case involving a mentally handicapped Wal-Mart applicant, the 11th Circuit said they weren't sure if "thinking, communicating and social interaction are ‘major life activities’ under the ADA."

Last month, the D.C. Circuit Court of Appeals made headlines when it held that sleeping was a major life activity. Seriously.

Well, now the D.C. Circuit has done it again: Having sex, apparently, is a major life activity. In Adams v. Rice, the court noted that a woman recovering from cancer, whose symptoms and treatments were messing with her sex life had a valid disability.

All this confusion over what constitutes a disability may be "cleared up" by an amendment before Congress right now, which would define the definition to include anything that "materially restricts" a "major bodily function." The amendment's proponents think this language would encompass things like AIDS and cancer automatically. I wonder if we're just giving the courts two more phrases to ponder over.

Back to sex in D.C. - One of the judges issued a dissent - not arguing that sex isn't a MLA, thank God - but rather saying that the plaintiff didn't show any interference with her sex life until long after the alleged discrimination took place. This is quite interesting, and is a sub-issue that will probably outlast any amendment made to the ADA.

Either way, an appellate court has once again explained something most of us took for granted. Employment law is such a great lens through which to view the difference between the judicial system and real life.