San Francisco Examiner - August 11, 2008

Who could have foreseen that lawmakers' attempts to protect handicapped individuals from discrimination would have devolved into such absurdities as the recent pronouncement that lack of romance renders one disabled?

The case, Adams v. Rice, stems from a truly unfortunate situation. After acing her entrance exams and receiving medical clearance, plaintiff Kathy Adams was accepted to the U.S. Foreign Service. But before she began training, she was diagnosed with breast cancer and underwent surgery.

The State Department subsequently revoked her acceptance to the Foreign Service, explaining that it could not guarantee assignments to locations where adequate medical care would be available for follow-up treatment. Adams filed a lawsuit, claiming the cancer as a disability, but a trial court ruled against her. Disability is defined as a condition that limits "a major life activity," and since Adams' cancer had been treated successfully, she did not qualify.

Realizing that her case hinged on demonstrating a continued impairment, Adams faced the appeals court better prepared: She told it the treatment for cancer had damaged her body image, making her reluctant to pursue romance.

The court ruled that an inability to become involved in sexual relations represented a substantial limitation on a major life activity; therefore, Adams had grounds to proceed on a discrimination claim against the State Department.

Go to the head of the class if you're wondering how sexual dysfunction has any bearing on a post with the Foreign Service. But Adams played by the letter of a law, as did Sidney Abbott.

After disclosing on her patient registration form that she was HIV-positive, Abbott was told by the dentist who found a cavity in her tooth that he could not fill it in his office; for his HIV-positive patients, he performed the procedure in a hospital. The charge for the dentist's services would be the same in either location, but Abbott would have to pay the hospital's charges. Preferring instead to sue him for discrimination, she faced a legal challenge: How could she claim a disability when her condition was asymptomatic? But like Adams, Abbott trumped. She claimed that being HIV-positive obligated her not to have children, and the Supreme Court could not deny that reproduction constitutes "a major life activity."

Of course, the issue was never about Abbott having children; it was about paying a hospital charge. But because disability law is so badly written, it invites this sort of abuse.

For one thing, defining a "major life activity" is inherently subjective. If Tiger Woods could no longer play golf - indisputably his life's major activity - could he claim to be handicapped if he still earned millions of dollars from product endorsements? And would that so-called disability entitle him to claim discrimination if he was turned down for a job in another field?

Moreover, disability protection should exclude self-inflicted conditions. Under the Americans With Disabilities Act, both drug addiction and alcoholism qualify as disabilities.

Casual drug use does not qualify, so employers are allowed to reject applicants on that basis. "On the other hand," the Justice Department says, "policies that screen out applicants because of a history of addiction or treatment for addiction must be carefully scrutinized."

So someone who smoked a joint in college can be turned down for a job, while a fresh-from-rehab junkie enjoys the protection of federal law?

Disability law is particularly advantageous for alcoholics because, no matter how many years they stay sober, they are always defined as "recovering." Consequently, any action they perceive as untoward is open to charges of discrimination.

I recently was told of an investment adviser threatened with a lawsuit by a client who lost money. Although the client sought and paid for the adviser's services and was sober as a judge when she made the investment, she is threatening to sue for her loss on the grounds that she is a recovering alcoholic. Go figure.

Disability law was intended to prevent discrimination against handicapped job applicants. For genuinely disabled workers trying to beat their affliction, protections should remain in place. But Congress should disable the laws that allow too many others to beat nothing but the system.

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Examiner Columnist Melanie Scarborough lives in Alexandria.

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