Boss, I Need an Accommodation for My Sex Life

I was doing some research on the new Americans With Disabilities Amendments Act (ADAAA) the other day and concluded that it's really open to wide-ranging interpretation--and abuse.

Under the original Americans With Disabilities (ADA) Act of 1990, the definition of disability hinged--as it still does in the ADAAA--on the definition of "substantially limits a major life activity." The courts, however, kept whittling down these qualifying life activities to the point at which Congress felt the ADA had been gutted, so it authored the ADAAA in 2008. The law took effect Jan. 1, 2009.

The ADAAA seeks to restore the open nature of "major life activity" and lists a whole slew of such activities, including walking, sleeping, thinking, concentrating, and so on. It then adds a new category, "operation of major bodily functions," to the list. Within this category are things like digestion, respiration, bowel movements and etc. The last one, "reproductive functions," really got me thinking.

Could a guy having trouble scoring with women claim a disability under this category?

"Boss, I haven't had any in months. I think my work is interfering with my reproductive functions."

Boss: "Say what?"

"You know, I need a reasonable accommodation for my sex life."

"And what would that be?"

"Let's start with telecommuting."

"But you're a stock room handler."

"Then hire some babes to work with me and give us a long lunch break."

"Right. Tell ya what, Joe. Stop by my office later, and I'll give you a reasonable accommodation with a generous severance package."

"You'll be hearing from my lawyer."

Would Joe prevail in his lawsuit? My guess is not, but anything can happen in court these days. It would be fun to find out at any rate.

A New Protected Class: Ugliness?

Over at the Ohio Employer's Law Blog, Jon Hyman has an interesting discussion on the proposal to add ugly to the protected classes under labor law and employment laws.

To wit, Hyman writes:

"Under the current state of the law, it is illegal to discharge, to refuse to hire, or otherwise to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of: race, color, sex, religion, national origin, ancestry, age, disability, genetic information, military status, and veteran status. I am fairly confident that 2009 will add sexual orientation, and possibly gender identity, to this list."

Now, the argument for adding ugly to the protected classes is to prevent discrimination based on looks, of course. Some, maybe most, employers prefer hiring good-looking people as they are perceived to be sharper, sexier and better, more trustworthy workers.

However, since beauty is in the eye of the beholder, how could the courts or regulatory agencies ever agree on how to define ugly so as to have a workable law?

ADA Amendments Act Will Greet the New Year

The Americans With Disabilities Act (ADA), originally passed in 1990, sought to open up employment in the private sector to persons with physical or mental disabilities who were otherwise perfectly capable of performing the required duties. The ADA brought to private enterprise what the 1973 Rehabilitation Act did for federal agencies and firms carrying out federal contracts.

Through the years, though, the Supreme Court kept nibbling away at the definition of disability to the point that the ADA lost almost all its teeth.

Voila--the Americans With Disabilities Amendment Act (ADAAA), signed into law this year by President Bush. The ADAAA clarifies exactly the intended definition of disability and throws in another category, "regarded as disabled." Taken together, the two categories--disability and "regarded as disabled"--pretty much cover every human being alive.

In fact, the ADAAA basically states that employers should accept at face value an employee's announcement of an impairment or disability that requires a reasonable accommodation. (There's one out clause--if the accommodation involves "undue hardship" for the company and its operations, then it might not be considered "reasonable.")

If you don't believe me, read this definition of "regarded as disabled": "[A]ctual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

(Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.)

My question is this: If an employee, for instance, has sleep apnea and thus is tired in the daytime, would a "reasonable accommodation" include a sleep break or two or three? A specially cushioned chair so as to be able to drift off into slumber when necessary?

I'm only half joking, but I think you get the idea that the ADAAA has significantly broadened the scope of what constitutes a disability.

Meanwhile, I'm relying on my old friends at Personnel Concepts to keep me updated on all this. In fact, the company has already issued its ADAAA Compliance Kit.