Monday, February 14, 2011

Plaintiff's Immune Deficiency Not Covered by ADA

In a ruling that took some by surprise last week, a federal judge in New York concluded that a type of immune deficiency does not qualify as a disability under the Americans With Disabilities Act.  (Bar-Tur v. Arience Capital, Docket No. 09 Civ. 2653, S.D.N.Y., Feb. 9, 2011).  In only the second case to ever address "common variable immunodeficiency," the court concluded that it was not a disabling condition even though there was no dispute that it interfered with the plaintiff's breathing, sleeping, and speaking.

The plaintiff, a highly-compensated hedge fund partner, began experiencing a variety of health problems, some of which she believed were recurring sinus infections.  She later was diagnosed with common variable immunodeficiency, an immune disease characterized by a reduction in antibodies.  About one in 30,000 people suffers from the disease and most who have it are more likely than the average person to get opportunistic infections and other illnesses.

After learning the nature of her illness, the plaintiff reported the diagnosis to her managing partner.  For the next several months, she worked a reduced schedule due to complications from the disease.  Finally, after the company determined that she was not putting enough time into her job, the plaintiff was given an ultimatum:  either resign or be demoted to a junior position.  She told the managing partner that her health and family came first, at which point she was stripped of her compensation incentives.  When she protested, she was fired.

In considering the ADA claim in the plaintiff's subsequent lawsuit, the court noted there was no dispute she had a physical impairment that interfered with several major life activities.  The problem with finding an ADA violation, however, was that there was no indication that the condition "substantially" impacted her ability to perform any of those activities.  For instance, while the plaintiff testified that the disease often caused her to be unable to sleep, she also testified that she generally went for runs after work and did yoga on Fridays.  Thus, the court concluded that the plaintiff's immune deficiency did not rise to the level of disabling condition within the meaning of the ADA.

As of this writing, the plaintiff has not decided whether to appeal the decision, and there are certainly some questions about whether the ruling is compatible with the relaxed standard for finding someone to be disabled under the Americans with Disabilities Act Amendments Act.  For now, however, it is important for employers to note that, under any standard, it remains the plaintiff's burden to demonstrate that they suffer from a condition that substantially limits one or more major life activities.  If they can meet that burden, it will then be incumbent on the employer to demonstrate that it complied with the obligation to provide a reasonable accommodation and otherwise to provide equal employment opportunities to qualified individuals with disabilities.

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