Wednesday, July 23, 2008

No...Seriously

I have been seeing this story all day and thought it was a joke. I couldn't find any version of the story until this one that addressed whether she had even applied to the State Department. Turns out, she did.

First off, I completely understand and think the Department is within its right to refuse to hire someone because of a medical issue that could affect where they can serve. Why should someone join the Department and be exempt from Day One from serving in hardship posts. What that means is that those of us who have served at hardship posts have that many fewer positions we can serve in at the "nice" posts that often serve as a means of decompression after a hardship tour. I am fine with someone who comes in capable of serving in hardship posts and then has a decline in health making them unable to. They came in prepared to do their fair share but life intervened. But coming in with no ability to serve a hardship tour? That's not fair to the rest of us.

But here is the second thing: what does the ability to have sex have to do with serving? It sounds like she was not hired because of her need for ongoing treatment for her breast cancer and that the "disability" is being used as an excuse to try to make the Department hire her. Employers are supposed to make reasonable accommodation to people who have disabilities that might ordinarily keep them from serving. For example, a blind person could expect items printed in brail or a reader. Why on earth would they not hire her because she can't have sex (after the Nachman incident, it would seem to make them MORE likely to hire her) and what accommodations could they possibly make.


I mean seriously. I hope the Department doesn't give in. Hire her if she is qualified and her cancer is in remission so that she can serve in hardship posts. But this is absurd.

Here is the story:


Court rules sexual disability is protected under anti-discrimination laws

WASHINGTON A South Carolina breast-cancer survivor has beaten the State Department and convinced judges in Washington that the inability to have sex is a disability protected under federal anti-discrimination laws.

The new appellate court ruling gives Piedmont, S.C., resident Kathy E. Adams another potential shot at serving overseas. More broadly, the ruling cracks open the courtroom door for additional legal challenges by those who are sexually incapacitated.

“I think it’s a major victory for former cancer patients, and for anyone who has had their sex life disrupted,” Adams’ attorney, David H. Shapiro, said Tuesday.

Adams, also a practicing lawyer, wants to compel the State Department to hire her as a foreign service officer and provide back pay. She’ll now go before a jury and trial judge, unless the State Department relents first.

[...]


The Russian-speaking Adams aced the State Department’s Foreign Service written and oral exams in 2002, ranking seventh out of 200 candidates. She was in line to start training in January 2004.

Before her training started, doctors diagnosed her with breast cancer. She underwent surgery, but the State Department subsequently denied her entry into the Foreign Service.

The department could not guarantee (her) access to the required medical follow-up and surveillance at all overseas assignments,” a State Department nurse testified.

State Department officials added, and the dissenting appellate judge agreed, that the department didn’t know about Adams’ sexual disability when it declined to hire her. The court majority, however, reasoned that “it makes no difference whether an employer has precise knowledge of an employee’s substantial limitation” so long as the employer knows about the impairment.

In this case, the State Department knew about Adams’ breast cancer but didn’t know how the cancer treatments impaired her sex life.

8 comments:

Consul-At-Arms said...

I don't want to seem mean-spirited or anything, but her seeking back pay from a position to which she was never appointed in the first place sounds rather punitive.

As you note, worldwide assignment availability is serious business, particularly these days. Hiring officers who, from their very first day, can't be assigned to hardship posts and therefore MUST occupy positions in Washington and "nice" posts means that healthier officers are penalized as they take up the slack.

By the way, there is no slack in today's foreign service. For a brief period between the DRI and the opening of embassies in Iraq and Afghanistan there _started_ to be some slack, but, oh well....

It's one thing for someone to develop a health issue after they're already hired; we get posted to awfully unhealthy places and it's a risk we all take; but it's quite another to say from Day One that you-have-to-hire-me-and-screw-all-the-rest-of-you-for-as-long-as-I-and-my-grievance-filing-litigious-prone-butt-cares-to-shift-the-burden-of-hardship-assignments-onto-somebody-else.

Oh, and-gimme-my-money.

Digger said...

Amen brother.

Here is what the Department *could* do: she got an offer and a start date. Then she got breast cancer. Give her a deferral until her cancer is sufficiently in remission to restore her class 1 medical clearance, then allow her to join the next A-100.

Anonymous said...

Um. I don't mean to be dense, but how would have breast cancer result in someone not being able to have sex? Many, many breast cancer survivors lead very full sex lives.

Digger said...

I think her argument is that the treatments for the breast cancer resulted in a loss of sex drive.

Dave said...

I rarely side with M/MED on anything, but in this case, it seems like a no-brainer. A person who requires treatment that is not available worldwide cannot be cleared for worldwide availability. An untenured JO can be fired at any time for failing to meet the conditions of service. If it were testicular cancer it would doubtlessly be the same unfortunate decision.

I do sympathise with the woman - my own mother died of breast cancer - but I think the Americans With Disabilities Act was meant to cover other things.

On the other hand, the court ruling could be a boon to ugly people everywhere.

If the State Department loses, I'm gonna take my unlucky-in-love self down to the EEO office and demand to be either laid, or paid!

Consul-At-Arms said...

I'm still missing the connection between her lack of sex drive and it being the Department's fault.

former lawyer said...

It's a typical badly misinformed reporter's take on a decision that is more theoretical than practical.

Basically, her claim against the department was dismissed in the early stages of litigation via summary judgment. That means the department argued that based on only limited facts from the petition itself and the statements of others (read the decision for some familiar FS names), the court could rule as a matter of law that she had no case. The trial judge agreed and dismissed the case.

The appeals court, in a decision based more on what she could prove rather than what has been proven, disagreed with the trial court and sent it back down. The claims she was making require certain factual showings and the status now is that she'll be able to try and develop those claims.

Indeed, the whole "sexual disability" claim doesn't even appear to have played much of a role in either the department's decision or the plaintiff's petition. Rather, it reads as if it's her lawyer's "hail Mary" pass to save the suit from being dismissed in an opposition brief.

Does that mean she'll get a class 1 clearance? Nope. Does that mean that all breast cancer survivors have sexual problems? Nope. Is it the law that folks without a class 1 clearance can now join the FS? Nope.

The court's decision only means that they thought, in this case, that there was a possibility that this plaintiff could possibly have a claim to discrimination which could survive legal challenges and make it to trial, where a judge or jury might someday decide, if it survives all the other legal challenges she faces. The facts don't look like they add up to much of a claim to me, but all this case means is she'll get to try to have her day in court.

See the decision here: http://pacer.cadc.uscourts.gov
/common/opinions/200807.htm

Anonymous said...

Just read the appellate court's decision. It spells out the issues and the court's reasoning. This was about her standing to sue under the ADA, not about whether her sex life had anything to do with the job or her ability to serve.

In order for her to bring a case alleging that her health status was the basis for denying her the job, she had to have, not only a qualifying impairment (or a history of one), but also a limitation resulting from that impairment, its sequelae, or its treatment. If the limitation kept her from doing the job, with or without any reasonable accommodation, then they could deny it to her. Having a limitation that does not affect her job performance, but which gives her standing to sue over discrimination based on her impairment or history thereof, is the best case scenario.

There was ample proof that her cancer was well into remission and that she would not need medical interventions of a kind not available in the most difficult assignment areas. So, by disqualifying her from the necessary classification and, thus, denying her the position, the government's medical people were second-guessing her own physicians and refusing to recognize her well-documented medical records. She was unfairly pre-judged, as in prejudice.

That the ability to have sex is a major life function goes without saying, and it fits with the wording of the statute in defining disability. What differentiates it from the other life functions is that, unlike walking, standing, seeing, hearing, breathing, thinking, etc, one's sexual or reproductive capacity could not, by any stretch of the imagination, ever be a factor to be considered as to whether an applicant could perform or be otherwise qualified for a job, except, perhaps, that of a prostitute. But listing cancer as a qualifying impairment, while denying that the complications of the condition are not a major limitation, defeats the intent of the law in protecting those for whom it was enacted.

But all this is just the tip of an iceberg. Will diabetics and hypertensives, who are otherwise symptom-free, now invoke impotence as a qualifying limitation? Will the morbidly obese or hopelessly ugly have standing to sue because no one will have sex with them? But, then, had Ms. Adams been happily married or otherwise sexually active when she brought the suit, perhaps the ruling would have been different?

One can only hope that, should Ms. Adams get the job, she'll someday find some hot, young embassy staffer who'll prove her doctors wrong and give her some of the sexual pleasure she has been denied. That would, indeed, be a very reasonable accommodation.