- A day care worker did not have cancer, but her genetic mutation and abnormal cell growth may qualify as a disability under the Americans with Disabilities Act (ADA), the 6th U.S. Circuit Court of Appeals ruled (Darby v. Childvine, et al. No. 19-4214 (6th Cir. June 30, 2020)).
- Shortly after Sherryl Darby began work at an Ohio day care center, she asked for time off to undergo a double mastectomy, as she had been diagnosed with breast cancer, she alleged. Her supervisors "balked at the idea," asking Darby to move the surgery past her 90-day probationary period. They continued to "harass" her about her leave, she said, despite approving her request to cover her time off with vacation and sick leave. When Darby returned, she was informed a letter was on its way to notify her of her termination for her attitude, dress code violations and "being unable to work." Darby claimed these reasons were pretextual.
- In discovery, it was revealed that Darby had not been diagnosed with breast cancer but with a pre-cancerous genetic mutation. A district court dismissed her case, ruling that Darby offered no evidence that the genetic mutation, like cancer, "substantially limits normal cell growth," a major life activity under the ADA, and was therefore not a disability. The 6th Circuit reversed and remanded the decision, noting that Darby had been diagnosed with not only a genetic mutation that limits cell growth but also "epithelial cell growth serious enough to warrant a double mastectomy." "It is thus at least plausible, at this stage, that Darby's gene mutation and abnormal cell growth, though not cancerous, qualify as a disability under the ADA," the appeals court said.
The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. Major life activities range from walking, talking and hearing to learning, thinking and, as this case highlights, cell-growing. This threshold is important, as employees must prove they have a disability to invoke the ADA, which, in short, protects them from discrimination on the basis of their disabilities and requires employers to accommodate them.
Employers may require medical exams to support a worker's request for an accommodation, according to the U.S. Equal Employment Opportunity Commission. Employers may also make such requests if they believe that the worker is unable to perform a job due to a medical condition.
In general, however, experts recommend that employers not make medical judgments and focus instead on whether accommodations are available. If an employee who uses a wheelchair is experiencing difficulty maneuvering a workspace, for example, then the limitation and subsequent accommodation might be so obvious that the employer and the employee can find a solution without involving a healthcare professional, Jill Luft, an attorney with Greensfelder, Hemker & Gale, P.C., previously told HR Dive.