In the wake of four Supreme Court decisions in recent years, successful Americans With Disabilities Act (ADA) lawsuits have been few and far between. The reason why employees have been so notably unsuccessful in ADA claims (a recent survey showed employees winning less than five percent of the ADA claims) has been the high hurdle set by the Supreme Court in judging whether an individual is “substantially impaired” as a result of a physical impairment. Unless an employee can show “substantial impairment,” he or she is not covered by the ADA, and the employer has the right to take adverse action against him because of his physical or mental condition.
These developments resulted in the loss of a lawsuit brought by Thomas McNiff, a captain in the Dracut, Massachusetts Police Department. McNiff filed a lawsuit against the City, claiming that he was the victim of discrimination on the basis of disability. In a relatively short period of time, McNiff underwent surgery both for prostate cancer and skin cancer.
A federal court dismissed McNiff’s lawsuit. The Court found that McNiff was only able to show that he was required to use 57 days of sick leave to recover from his surgeries. The Court found that this level of sick leave use was too low to show that McNiff’s cancer substantially interfered with a major life activity.
The Court found that “although McNiff can prove he was out of work for at least 37 days due to his prostate cancer and ten, but not more than 20 days due to his skin cancer, such relatively short periods of leave do not trigger the protections afforded by the ADA.”
The Court also made clear that simply because an individual suffers from cancer does not mean that an employer is prohibited from taking adverse action against the employee because of the cancer. The Court ruled that a “claim of cancer itself is not enough to fulfill the ADA requirement of there being a substantial limitation on a major life activity. Although cancer qualifies as an impairment, it does not necessarily follow that one is disabled within the meaning of the ADA. If an individual undergoes corrective procedures, either through medication or other measures, then the individual’s impairment cannot substantially limit a major life activity.”
McNiff v. Town of Dracut, 2006 WL 1464473 (D.Mass. 2006).
This article appears in the July 2006 issue