tag:blogger.com,1999:blog-31417199.post3647436863564047773..comments2023-12-14T11:26:51.959-05:00Comments on Life After Jerusalem: No...SeriouslyDiggerhttp://www.blogger.com/profile/03856750834804127824noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-31417199.post-8263208251193444922008-07-31T02:01:00.000-04:002008-07-31T02:01:00.000-04:00Just read the appellate court's decision. It spel...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.<BR/><BR/> 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.<BR/><BR/> 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.<BR/><BR/> 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.<BR/><BR/> 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?<BR/><BR/> 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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-31417199.post-48896020319576375632008-07-27T11:02:00.000-04:002008-07-27T11:02:00.000-04:00It's a typical badly misinformed reporter's take o...It's a typical badly misinformed reporter's take on a decision that is more theoretical than practical.<BR/><BR/>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.<BR/><BR/>The appeals court, in a decision based more on what she <I>could</I> 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.<BR/><BR/>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.<BR/><BR/>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. <BR/><BR/>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.<BR/><BR/>See the decision here: http://pacer.cadc.uscourts.gov<BR/>/common/opinions/200807.htmAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-31417199.post-50677486417391808562008-07-24T16:11:00.000-04:002008-07-24T16:11:00.000-04:00I'm still missing the connection between her lack ...I'm still missing the connection between her lack of sex drive and it being the Department's fault.Consul-At-Armshttps://www.blogger.com/profile/04391037582103556978noreply@blogger.comtag:blogger.com,1999:blog-31417199.post-20421052017880117272008-07-24T14:46:00.000-04:002008-07-24T14:46:00.000-04:00I rarely side with M/MED on anything, but in this ...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.<BR/><BR/>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. <BR/><BR/>On the other hand, the court ruling could be a boon to ugly people everywhere. <BR/><BR/>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!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-31417199.post-4422241146608612862008-07-24T13:21:00.000-04:002008-07-24T13:21:00.000-04:00I think her argument is that the treatments for th...I think her argument is that the treatments for the breast cancer resulted in a loss of sex drive.Diggerhttps://www.blogger.com/profile/03856750834804127824noreply@blogger.comtag:blogger.com,1999:blog-31417199.post-31382739934010330212008-07-24T13:12:00.000-04:002008-07-24T13:12:00.000-04:00Um. I don't mean to be dense, but how would have ...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-31417199.post-70000535980622828332008-07-24T11:12:00.000-04:002008-07-24T11:12:00.000-04:00Amen brother.Here is what the Department *could* d...Amen brother.<BR/><BR/>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.Diggerhttps://www.blogger.com/profile/03856750834804127824noreply@blogger.comtag:blogger.com,1999:blog-31417199.post-80960928307438055662008-07-24T11:01:00.000-04:002008-07-24T11:01:00.000-04:00I don't want to seem mean-spirited or anything, bu...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.<BR/><BR/>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.<BR/><BR/>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....<BR/><BR/>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.<BR/><BR/>Oh, and-gimme-my-money.Consul-At-Armshttps://www.blogger.com/profile/04391037582103556978noreply@blogger.com