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Ability to Engage in Sexual Relations Deemed Major Life Activity under Federal Disability Laws

    Client Alerts
  • August 01, 2008


Under the Americans with Disabilities Act, protected individuals are those who suffer from a significant impairment of a major life activity, or who are regarded as or have a record of suffering from such impairment. The question of what constitutes a major life activity has vexed federal courts. In its Williams v. Toyota Mfg. case, the U.S. Supreme Court said that in most cases, major life activities will not involve work, but rather consist of daily life activities, such as walking, speaking, eating, and the ability to care for oneself. Earlier this month, the District of Columbia Court of Appeals concluded that the ability to have sexual relations is also a major life activity.

In Adams v. Rice, the plaintiff was a State Department employee who sought an overseas posting. The State Department declined to allow her to serve overseas in certain countries because she was a breast cancer survivor, and the Department was concerned about the ability to provide follow-up medical care in developing countries. The plaintiff asserted that she was cancer-free, and sued under the Rehabilitation Act (this law applies to federal employers and contractors, and is interpreted the same as the ADA).

The trial court rejected the plaintiff’s claim, finding that she was not a qualified person with a disability as defined under the law. That court concluded that the plaintiff had no current medical issue, was not regarded as disabled by the State Department, and had no record of an impairment because her cancer surgery and recovery involved only several weeks. The D.C. Circuit reversed, concluding that the plaintiff had a record of an impairment of a major life activity.

In drawing this conclusion, the D.C. Circuit pointed to testimony from the plaintiff describing the impact of the surgery and follow-up care on her libido and sex life.  She noted a fear of rejection based upon the surgery, as well as the side effects of anti-estrogen medication used as follow-up treatment. The court had no problem classifying sexual activity as a major life activity, even if the purpose of the activity is not related to reproduction. The fact that the employer had no idea of the plaintiff’s sexual impairment at the time it made its decision is irrelevant to the question of coverage under the law.

As previously reported in EmployNews, Congress is currently considering statutory changes to the ADA that would probably have been determinative in this case. The new law would expand the definition of disability under the ADA and Rehabilitation Act, and avoid these type of threshold coverage disputes.