Amicus Brief of CancerLINC and National Coalition for Cancer Survivorship, et al., in Golden v. Indianapolis Housing Agency (U.S. Supreme Court, No. 17-1113)
36 Pages Posted: 26 Mar 2018 Last revised: 30 Mar 2018
Date Written: March 8, 2018
In a series of cases, the U.S. Court of Appeals for the Seventh Circuit has held that a person needing a multi-month leave from work to treat and to recover from an illness is categorically not disabled and thus not eligible for the employment protections of the Americans with Disabilities Act (ADA). See, e.g., Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017).
Specifically, the Seventh Circuit has erected a per se rule that anyone needing a temporary, multi-month leave of absence is never a qualified “individual with a disability” under the ADA, see 42 U.S.C. § 12111(8) — stopping the typical ADA analysis at its threshold and thus failing to account for the ADA’s flexible, case-by-case inquiry into whether a given workplace accommodation is “reasonable” and whether the accommodation would impose an "undue hardship" on the employer. See, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405-06 (2002). A pending petition for a writ of certiorari in Golden v. Indianapolis Housing Agency, No. 17-1113 (U.S.), challenges the Seventh Circuit’s rule. Two national non-profit organizations — CancerLINC and the National Coalition for Cancer Survivorship — and three individual cancer survivors and advocates have filed the attached amicus brief in support of the Golden petition. The amicus brief explains in detail, through use of medical and other literature, why the Seventh Circuit’s rule would eliminate coverage for large numbers of people in treatment for cancer. (For instance, data show that the average length of absence from work for cancer treatment is about five months.) The brief also explains that treatment for other serious medical problems — for instance, certain kinds of heart and kidney disease — have similar recovery times, and so many other patients also would lose ADA coverage under the Seventh Circuit’s rule.
The brief shows that the Seventh Circuit’s rule runs headlong into the ADA’s text and history. When Congress first considered the ADA, it heard about employment discrimination from cancer survivors and then indicated that cancer survivors were covered by the Act. After the ADA’s passage, however, some courts excluded cancer survivors from ADA coverage. Congress responded in 2008 with the ADA Amendments Act to clarify that the ADA covers cancer survivors. Congress expressly include people with impairments to “normal cell growth,” 42 U.S.C. § 12102(2)(B), and impairments “in remission,” id. § 12102(4)(D) — both references to cancer. As the amicus brief explains, if the Seventh Circuit’s rule remains in place, these important statutory changes would have little practical effect.
Notably, the first-line drafters and researchers of this amicus brief are law students in Georgetown Law’s Appellate Courts Immersion Clinic, Cole Kroshus and Genevieve Mesch.
Keywords: ADA, Americans with Disabilities Act, cancer, cancer survivor, disability, disabled, undue hardship, reasonable accommodation
JEL Classification: K31, K32, K41
Suggested Citation: Suggested Citation