In BIG Surprise, D.C. Circuit Holds "Sleeping" and "Having Sex" Are Major Life Activities
But you shouldn’t do them on the bench….
In two recent decisions, U.S. Court of Appeals Judge David Tatel has found on behalf of D.C. Circuit panels that "sleeping" and "having sex" are "major life activities" for purposes of federal disability discrimination law, in employment discrimination cases. Desmond v. Mukasey, 2008 Westlaw 2583022 (July 1, 2008) (sleeping) and Adams v. Rice, 2008 Westlaw 2777903 (July 18, 2008) ("engaging in sexual relations"). Now, this might strike anybody not versed in the arcane aspects of federal employment discrimination law to wonder what is going on. After all, it is highly unlikely that most jobs that would come to the attention of the courts in the context of an employment discrimination case would list "sleeping" or "having sex" as essential elements of the job. So why is it relevant to deciding an employment discrimination case for a court to inquire into the sleeping or sexual activities of the plaintiff?
When Congress began legislating on the topic of discrimination against people with what were then (1970s) called "handicaps," it decided that the law should not be concerned with minor or transient physical or mental impairments, but rather with significant impairments of a long-term or permanent nature. Partly this was out of concern not to flood the courts with litigation about cases that might be deemed trivial, and partly out of sensitivity about intruding unduly into the discretion of companies to manage their businesses and make their personnel decisions. In trying to describe the kinds of physical and mental impairments that were serious enough to qualify an individual for federal statutory protection against unjustified discrimination, Congress hit upon a somewhat peculiar formula: it stated that in order to be considered "handicapped" (the language was changed with the passage of the ADA to "person with disability"), a person would have to have a physical or mental impairment that substantially limited a major life activity of the individual. The statute does not define "major life activity" and subsequent regulations by federal agencies have proven a bit too vague to provide easy guidance in all cases. In addition, the Supreme Court has in recent years been resistant to relying on the legislative history of the statute in instances where it might yield easy answers.
Thus, disability discrimination cases have been known to get bogged down in furious pretrial litigation about whether the plaintiff has a "disability" within the meaning of the statute, and those arguments have in many cases focused on whether a "major life activity" was "substantially limited" by the particular physical or mental condition at issue….. [Follow link for the remainder of Art's analysis]
With luck, by the end of the year, Congress will provide more good news for disability rights advocates.