Abnormal cell growth — without cancer — may be a disability, 6th Cir. rules
Dive Brief:
· 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.
Dive Insight:
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.
Website Accessibility: How Can You Play by the Rules?
Website accessibility has been a hotly debated topic in recent times. As the penetration of the internet grows, the demand for web accessibility is also rising.
In simple terms, web accessibility refers to the process or practice of making the web accessible to everyone regardless of their disabilities. However, many website owners continue to ignore web accessibility, which is hurting their business in many ways. Let's see why.
Why is Website Accessibility Important?
In recent years, the number of website accessibility lawsuits has shot up. An increasing number of plaintiffs are bringing lawsuits under Title III of the Americans with Disabilities Act (ADA), targeting various businesses.
In 2018, 2,285 lawsuits were filed, almost tripling from the 815 filed in 2017. In the first half of 2019, the number of website accessibility lawsuits reached over 3,200, a staggering 51.7 percent increase compared to the previous six months.
While news of bigwigs like Dominos getting slapped with an ADA lawsuit made headlines across the country, many small and medium businesses that have a physical location and offer online services as well were targeted.
Unfortunately, the small guys usually don't have the resources to fight a long and potentially expensive legal battle. So, the best way to avoid website accessibility lawsuits is to make your website accessible.
What Happens When You’re Disabled but Nobody Can Tell
The author and clinical psychologist Andrew Solomon examines the disabilities that ramps and reserved parking spots don’t address.
Thoughts on ADA
What does ADA mean to me? It is often said that ADA is like an equal rights amendment for the disabled and that is true in many ways. I see the ADA law as being a starting point a way to try and equalize the world for the disabled. ADA provides basic guidelines for institutions both private and public to make them accessible and with equal opportunities for all.
ADA is not a crutch to be leaned on and used to force businesses to make change; it is a banner to be held high, to push for a higher standard of awareness, understanding and acceptance. To recognize that not only are the disabled worthy of our respect but also to realize that every single one of us could and very likely will become in need of accommodation and accessibility. We need to approach access from our own personal, perhaps even selfish perspective; what if it was my child who needed accommodation? What if it was my sibling? What if it was my parents? My grandparents? What it if was me?
We look for ADA to help us find ways to help all fit it, to empower all to achieve their best. Those with disabilities often want more than anything to not just fit in and be accepted but to be a productive part of society.
I contracted polio at age 18 months do to a shortage of the vaccine. I started in public schools in the early ‘60s, there was little to no guidance at that time to help deal with and accommodate the disabled. In 3rd grade I was literally saved by being able to attend Crippled Children’s Hospital and School, now a part of Lifescape, in Sioux Falls. I was able to get a good grade school and high school education while learning to deal with a somewhat unaccommodating world, I went on to “normal” colleges, eventually graduating and teaching at the collegiate level for 33 years so far. I fully understand the value and significance of ADA; had it been around when I was younger my life would have been much better, the future for those that now follow should be even brighter.
In my own world I have been driven to go beyond acceptance, to try to make a positive difference. Much of where I got to today started long before ADA became law, before PL 94-142 (often referred to as the mainstreaming law) became law. Back then disabled were often looked at as someone to be pitied, someone to feel sorry for, I fought that all my life, in fact I spent much of my life trying very hard to not be that poor little crippled boy, but to prove I was much more than that. ADA works to change that, to help make people understand that being disabled is not something to look down upon but to be accepted to be appreciated, to be part of the world and society.
ADA paves the way to a better life for all disabled and by doing so a better life for all.
ADA is just a starting point, giving basic minimal laws and guidelines, we need to look beyond those minimums that allow for access and look to do more to move ahead, to go from allowing access to openly welcoming access. The disabled have a lot to offer this world, beyond the fact that many make extremely hard-working dedicated employees; they also offer us a chance to see things from other perspectives, to help us learn about empathy.
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