Attorney Harrison Oldham

In Darby v. Childvine, a recent decision from the United States District Court for the Southern District of Ohio, the Court considered whether a genetic mutation can constitute a “disability” as that term is defined under the federal Americans with Disabilities Act (“ADA”).

In that case, Darby was hired as an administrative assistant around August 2016 for Childvine, an early childcare provider. Shortly after beginning her employment, Darby underwent a double mastectomy on October 25, 2016. Thereafter, the employer terminated Darby two weeks after she underwent surgery for a double mastectomy. Darby sued Childvine, alleging she was terminated in violation of federal and state law because of her breast cancer diagnosis.  In short, Darby claimed that because she had breast cancer, she was therefore disabled under the ADA, and that its termination of her employment violated the ADA.

Childvine moved to dismiss her complaint, arguing that a diagnosis of breast cancer is not a “per se disability” and highlighting Darby’s failure to allege any substantial limitation of a major life activity. (which is, in part, how the ADA defines a disability). In response, Darby filed an Amended Complaint on November 16, 2018 in which she stated, “In September 2016, Ms. Darby was diagnosed with breast cancer, which substantially limited her major life activity of normal cell growth.”

Through written discovery, Childvine learned that Darby was not in fact diagnosed with cancer as alleged in the Amended Complaint, but, instead, tested positive for a gene mutation—BRCA1—that is associated with an increased risk of cancer. In fact, Childvine went so far as to ask the Court “to have the pleadings amended to conform with the evidence that Plaintiff never had breast cancer.”

In reviewing Darby’s claim, the court recognized that the federal Americans with Disabilities Act (“ADA “), as amended by the Amendments Act of 2008 (“ADAAA”), prohibits employers from discriminating against—including discharging—an employee on the basis of disability. A “disability” is defined as a physical impairment that substantially limits one or more of an individual’s major life activities.

However, although the Court was mindful that the ADA is to be broadly construed, the Court concluded that Darby failed to state a claim upon which relief can be granted. Darby “offered no statutory, regulatory, or caselaw support for her ‘legal conclusion couched as a factual allegation’ that the BRCA1 gene, like cancer itself, is a physical impairment that substantially limits normal cell growth.” As a result, the court determined that Darby’s claim of disability discrimination—based on testing positive for the BRCA1 gene—was not plausible under federal or state law.

In addition, the Court offered a bit of a disclaimer, in stating that “the Court’s decision should not be read to trivialize Plaintiff’s legitimate fear of developing breast cancer or minimize the transformative measures she took to avoid it. It merely recognizes that this Court’s role is to interpret, not legislate. To expand the definition of physical impairment to include a condition that might lead to a disability in the future effectively puts every employee under ADAAA protection.”

Interestingly, the outcome of this case might have been different had Darby approached this matter with a claim under the Genetic Information Nondiscrimination Act (“GINA”). GINA expressly prohibits discrimination in employment on the basis of genetic information, meaning that individuals who carry genetic mutations such as BRCA I are the individuals that GINA seeks to protect.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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  • Lisa Smith, SPHR says:

    Great question. I am guessing she may have a GINA case.

    January 2, 2020 at 8:43 am
  • akirby@eaglegrp.com says:

    THIS WAS VERY ENLIGHTENING! I do wonder though, could she now re-file under the GINA act?

    January 2, 2020 at 6:49 am

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