In a previous blog, we discussed Darby v. Childvine, a decision from the United States District Court for the Southern District of Ohio in which the court considered whether an otherwise healthy person with a genetic mutation meets the definition of disabled under the federal Americans with Disabilities Act (“ADA”). As a reminder, the ADA broadly defines the term “disability” as a physical or mental impairment that substantially limits one or more major life activities. In Darby, the plaintiff, Sherryl Darby, alleged that she was discriminated against when her employer terminated her employment after she underwent a double mastectomy following diagnosis of the growth of abnormal pre-cancerous cells along with a genetic mutation, known as BRCA1, which contributes to abnormal cell growth. The District Court concluded that a BRCA1 genetic mutation, by itself, is not a protected disability because although it demonstrates an increased likelihood that a person may develop the disability of cancer in the future, it does not constitute a present disability. Further, the court analyzed whether the BRCA1 genetic mutation fell under the ADA’s protections for disabilities in their dormant form, but ultimately determined that Ms. Darby’s condition constituted an absence of cancer, not cancer in remission or an otherwise dormant disability. Therefore, the District Court dismissed Ms. Darby’s complaint.
However, on June 30, 2020, the U.S. Court of Appeals for the Sixth Circuit (which covers Ohio, Kentucky, Michigan, and Tennessee) reversed and remanded, holding that Ms. Darby plausibly alleged that her genetic mutation could qualify as a disability under the ADA. Utilizing the ADA’s definitional framework, the Sixth Circuit believed the relevant question was:
“Has Darby plausibly 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?”
The court determined that Ms. Darby’s allegations met this threshold. Although the Sixth Circuit agreed that a genetic mutation that merely predisposes an individual to other conditions, such as cancer, is not itself a disability under the ADA, the court ultimately held that Ms. Darby had alleged more than that. Ms. Darby alleged both that she had a genetic mutation that limits normal cell growth and the growth of abnormal cells, and that her condition was serious enough to “warrant an invasive corrective procedure.” Therefore, the court concluded that it was at least plausible that Ms. Darby is substantially limited in normal cell growth (a “major life activity” according to the 2008 amendments to the ADA) compared to the general population. Further, the ADA’s implementing regulations characterize cancer as a condition that, “at a minimum,” will qualify as an impairment that substantially limits a major life activity. According to the Sixth Circuit, that language “appears to set a floor, not a ceiling.” Thus, the Sixth Circuit concluded that was at least plausible that Ms. Darby’s gene mutation and abnormal cell growth, though not cancerous, could nevertheless qualify as a disability under the ADA.
The Sixth Circuit was careful to emphasize the narrow nature of both the issue before the court and its holding, clarifying that the court was not deciding whether Ms. Darby’s condition in fact falls under the ADA’s definition of a disability. Further, the court did not determine whether Ms. Darby’s pre-cancerous cells at issue constitute a substantial limitation on her normal cell growth or whether those pre-cancerous cells were caused by Ms. Darby’s genetic mutation. Rather, the court simply held that Ms. Darby’s condition could be considered a disability under the ADA if certain conditions were found to be satisfied. Ultimately, the Sixth Circuit reversed and remanded the case, instructing the District Court to reconsider her claims under the ADA, as well as under Ohio law.
We will continue to keep you updated as new developments in this and other similar disability discrimination cases arise. In the meantime, employers should be cautious when making employment decisions regarding requests for accommodation involving the BRCA1 gene or other alleged genetic mutations, and should be sure to engage in the interactive process with employees, accommodating such requests when feasible. Employers additionally should be mindful that genetic mutation issues not only implicate potential ADA issues, but issues under the Genetic Information Nondiscrimination Act (GINA).