Can an employer discriminate under the ADA without knowing which major life activity is significantly impaired?

You may have read that the federal appeals court in D.C. held that sexual relations is a major life activity. Somehow that made news.

What was much more interesting about the decision is how the court decided the plaintiff could show (depending on the proof) she met the definition of disability. The plaintiff had breast cancer and testified that her feelings for sex and romance were significantly affected even after her cancer treatments ended (except for regular medication). That was enough, the court said, to constitute a significant limitation where the employee showed she had a "record" of an impairment (the second of three definitions of disability in the ADA).

But, the employer (the government) argued, we did not know she had a substantial limitation of any major life activity so we couldn't have discriminated against her. That didn't matter to the court. It was enough that the government had knowledge of her substantially limiting impairment (or record of an impairment). In fact, government hiring regulations prohibited the government from asking about her ability to perform non-job related functions, and her ability to engage in sexual relations had nothing to do with her job.

The court distinguished the facts here (which it referred to as a "pure discrimination" claim) from the situation where an employee needs a reasonable accommodation because of a substantial limitation. In the latter situation, the employer will necessarily have to know which major life activity is affected so it can make the accommodation.

Several observations are worth contemplating. The decision was not unanimous on this point. There is a difference between not knowing which major life activity is affected and not knowing the employee has a disability. Action taken because of the employee's misconduct is non-discriminatory even if the employer later finds out the misconduct was caused by a mental impairment. And finally, an employer should rarely base significant employment action on whether or not the employee has a disability, as I explained in a prior post.