Jottings By An Employer's Lawyer

Wednesday, April 12, 2006

Sex v. Sexual Reproduction and the ADA - A View from the Midwest


Although inching closer to the line, the 7th Circuit does not yet agree with the 9th Circuit that the ability to engage in sex, as opposed to the ability to engage in sex for the purposes of sexual reproduction, is a major life activity. Scheerer v. Potter (7th Cir. 4/10/06) [pdf]. That's just one nugget from the case in which the postmaster in a one person station was not able to convince either the district or appellate court that his diabetes rendered him disabled under the Rehab Act (or by analogy, the ADA).

With respect to the distinction between sex and sexual reproduction, the Court noted:
Scheerer’s evidence pertaining to a substantial limitation in sexual reproduction is insufficient. Scheerer complains of reduced sexual drive and difficulty in obtaining erections; he must rely on injections to sustain an erection. His complaint is limited reduced sexual activity, untethered to impairments in sexual reproduction. This alone may be fatal to his claim because this court has not recognized lowered sexual drive or impotence as the types of disruptions than can amount to a disability under the ADA or the Rehabilitation Act.
Two quick thoughts -- one other place the distinction between sex and sex for purposes of reproduction is made (with advance apologies for perhaps not getting the theological niceties down) is the Catholic church's rationale for the ban on birth control. Secondly, it still doesn't answer the question posed by the dissent in the 9th Circuit's recognition of engaging in sexual relations as a major life activity:
I fail to see any causal connection whatsoever with McAlindin's alleged sexual disfunction and the job he wants, the job he has, or the adverse employment actions he alleges he suffered. Is the employer supposed to accommodate his impotence?
Judge Trott, concurring in part and dissenting in part in McAlindin v. County of San Diego, No. 97-56787 (9th Cir. 1999).

And a last thought, it is hard to read the facts of this case and not be sympathetic with the plaintiff, as in fact the Court clearly was; but also not be sympathetic with the courts (in a very different way) for being handed a law with a notable and worthwhile purpose, but very difficult to make work in the real world to protect those in the need of protection without swamping the courts with claims that are not truly what most believe the statute was designed to do. By clamping down hard at the initial stage -- the definition of disability -- the courts have to date kept the statute in check, albeit at a cost to those it was designed to protect, and probably also to the development of the law under the ADA.

I am not sure that approach will hold forever. It would be nice if there were an opportunity for some common sense revision of the statute, but since that would inveitably be seen as a "takeaway" -- that will not happen. In the meantime we will limp along.

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