Gene mutation can be disability under ADA

A noncancerous gene mutation can be a disability covered by the Americans with Disabilities Act (ADA), the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Ohio employers) recently decided, overruling the district court. It was the first time any federal appeals court had heard a case on the issue.

Facts

Sherryl Darby was employed as an administrative assistant by Childvine, Inc., an early childcare provider, from August 2016 to November 2016. She underwent a double mastectomy on October 25 and received written notice of her termination approximately two weeks after her surgery. Childvine’s stated reasons for termination were “an unpleasant” attitude, dress code violations, and “being unable to work.”

On September 21, 2018, Darby filed suit against Childvine in the federal district court in Cincinnati. Her complaint alleged disability discrimination claims under the ADA and Ohio’s nondiscrimination statute. During discovery (pretrial exchange of evidence), Childvine learned Darby was not diagnosed with cancer as alleged in her amended complaint, but instead had tested positive for a gene mutation—BRCA1—which is associated with an increased risk of cancer.

Childvine filed a request to dismiss Darby’s claims. Because she had never actually been diagnosed with cancer, the company argued she wasn’t “disabled” within the meaning of the ADA or Ohio law.