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Are Genetic Mutations A Protected Disability Under The ADA?

Published By | Mar 25, 2022 | Disability Discrimination, Employment Discrimination, Employment Law, Wrongful Termination |

Here at the Spitz, The Employee’s Law Firm, our employment discrimination lawyers pride ourselves on our knowledge and application of the Americans with Disabilities Act of 1990 (ADA). Our disability discrimination lawyers have written many fantastic blogs going through the ins and outs of what to do if your employer violates the ADA. (See Law: Does The ADA Protect Emotional Outbursts?, Can A Schedule Change Be An ADA Accommodation?, and Can My Boss Fire Me Because of My Medical Condition? I Need The Best Disability Employment Discrimination Attorney In Ohio!). Today, I thought we’d take some time to look at a more niche topic of the ADA we don’t get the chance to talk about much. The question is whether a genetic mutation by itself is sufficient to be considered a disability under the ADA.

What does the ADA do for disabled workers?

The ADA, effective as of January 1, 2009, provides federal employment law protections to all Americans with disabilities. Specifically, the ADA makes it unlawful for employers to discriminate against employees who are disabled as defined by the ADA; and requires employers to provide disabled employees with reasonable accommodations that allow otherwise qualified employees to perform the job?

What qualifies as a disability under the ADA?

Best Employment Lawyer Answer: The part of the ADA that is important for our discussion today is actually how the ADA defines what a “disability” is. In full, that act state:

The term “disability” means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

42 USC 126 §12102(1)(Emphasis added).

What does a “major life activity” mean under the Americans with Disabilities Act?

Best Disability Discrimination Attorney Answer: The ADA defines the term “major life activities” as activities one does throughout their life such as “performing manual tasks, seeing, hearing, eating, walking” alongside other similar activities. It also includes what the Act defines as “major bodily functions” which includes, among other things, “functions of the immune system, normal cell growth, digestive, neurological,” etc. 42 USC 126 §12102(2)

How do you prove a case of disability discrimination under the ADA?

Best Ohio Employment Lawyer Answer: Generally, an employee will have to show three things:

  1. You are disabled;
  2. You were qualified for the position you had with or without reasonable accommodations; and,
  3. You would not have been discharged but for the disability.

Can my employer fire me for disclosing I have a genetic mutation?

Best Wrongful Termination Lawyer Answer: First off, what does genetic mutation mean in this situation? Well, the United States Court of Appeals for the Sixth Circuit, the federal appellate court for Ohio, decided a case to help answer that question. So, let’s dive into Darby v. Childvine, Inc. which deals specifically with the first part of the test I’ve described above. No. 19-4214 (6th Cir. 2020).

Sherryl Darby worked for Childvine as an administrative assistant for one of their day care facilities in Springboro Ohio. Shortly after working there, Darby notified Childvine that she had been diagnosed with breast cancer and that she was scheduled to undergo a double mastectomy later that month. She needed to take time off for the surgery and to recover. After she returned from her surgery, Childvine terminated Darby’s employment, citing attendance, dress code violations, and an “unpleasant” attitude.

Darby filed suit against Childvine claiming that they had discriminated and unlawfully terminated her employment because of her disability, which violated the ADA. (It is important to note that better claims may have been available under the federal Genetic Information Nondiscrimination Act (“GINA”) but were not brought).

While the case was ongoing, it came out that Darby wasn’t actually diagnosed with breast cancer, but instead had a family history for breast cancer and a genetic mutation called BRCA1, which she argued substantially limited her normal cell growth. The District Court granted a motion to dismiss, stating that Darby had not shown enough evidence that the mutation was a physical impairment and that it was simply a mutation that “might lead to [breast cancer] in the future” Id. at 3. Darby appealed that case to the Sixth Circuit.

The United States Court of Appeals for the Sixth Circuit began its  analysis by first going over the things we did above, like stating what a disability is and what it means to substantially inhibit a major life activity. Id at 6. The Court also cites the ADA at §12102(4)(A), which states that if a case is on the margin or not explicitly listed, it is to be interpreted in favor of coverage rather than no coverage. In other words when considering this case, the scales start out slightly in favor of Darby. Id. The question the Court really has to address is:

Has Darby plausible alleged that her impairment substantially limits her normal cell growth as compared to the general population due to both a genetic mutation (BRCA1) that limits her normal cell growth and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy?

Id. (Emphasis added).

If the answer is yes, then the genetic mutation would fall under the ADA. Then, if Darby could prove that Childvine terminated her in retaliation for that genetic mutation, they would be violating the ADA. The United States Court of Appeals for the Sixth Circuit decided that the answer to this question was a resounding yes. The Court cites one of the regulations that interpreted the ADA which included cancer as a disability since it limited the growth of normal cells. The court explains that more information needs to be gathered through discovery for a determination to be made as to whether BRCA1 actually alters the growth of cells, meaning the case should not have been dismissed.

How does this help you? Well, the Sixth Circuit kindly laid out a few clarifications to what this means for other individuals. Specifically, the Sixth Circuit went on to explain that having a genetic mutation that merely increased the possibility of developing a disability is not sufficient to withstand a motion to dismiss. The court explained that:

To qualify as a disability, in other words, a condition must substantially limit a major life activity, not merely have the potential to cause conditions that do. And a genetic mutation that is merely capable of altering normal cell growth cannot be an impairment that presently ‘substantially limits’ that growth. By the clear terms of the ADA, a plaintiff must allege more than a genetic mutation capable of interfering with normal cell growth to survive a motion to dismiss. Id at 8.

This can be a little confusing, so let’s try to summarize what we’ve learned. Firstly, when looking at a case that has been dismissed, an appellate court doesn’t have to decide whether the genetic mutation is or is not a disability, but rather whether it is plausible that it could be. Secondly, and more importantly, the Court has decided that a genetic mutation that simply increases your chances to get a disability, such as cancer, is not sufficient to be considered a disability by itself.

Frustratingly, the employee in this case did not argue that the employer perceived her mutation as being disability and so we don’t have much analysis from the Court on that option.

What should you do if you if you’ve been wrongfully fired for a genetic mutation?

Best Employment Lawyer Answer: Firstly, you should save all medical documentation about what the genetic mutation does or could do to you, since the mere possibility of developing a disability because of it is insufficient. Secondly, and most importantly, you should call the right attorney! If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown and Detroit to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.

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