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, the employer terminated the plaintiff/then-employee Sherryl Darby two weeks after she underwent surgery for a double mastectomy.  Darby sued Childvine, claiming that she had breast cancer, 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 does not automatically mean that the employee is substantially limited in a major life activity – which is, in part, how the ADA defines a disability.  In response, Darby amended her complaint, alleging that her cancer diagnosis meant that she was substantially limited in normal cell growth, which, she alleged, is a major life activity.

The twist in the case came in discovery, when Childvine found out that Darby in fact did not have breast cancer, but rather that she had learned that she has a genetic mutation to a specific gene, BRCA I, that is associated with an increased risk of developing breast cancer, and that it was the discovery of this genetic mutation, along with a family history of breast cancer, that caused Darby to have a preventative double mastectomy.  With this new information, Childvine again moved to dismiss her complaint, arguing that Darby’s genetic mutation was not currently limiting normal cell growth, but instead only increased her likelihood of abnormal cell growth in the future, and that the ADA does not protect potential future disabilities.

If this sounds like familiar verbiage, it may be because you read our prior blog post in which we discussed a recent opinion, Shell v. Burlington Northern Santa Fe Railway Company, from the United States Court of Appeals for the Seventh Circuit, wherein that court held that the ADA does not provide protection the basis of a future disability.  The Ohio court in Darby reached the same conclusion, agreeing with Childvine (and consistent with the Seventh Circuit in Shell) that a BRCA I genetic mutation, by itself, is not a protected disability because it represents an increased likelihood that a person may develop the disability of cancer in the future, but is not a present disability.  The Darby court also analyzed whether the BRCA I genetic mutation fell under the ADA’s protections for disabilities in their dormant form, but found that Darby’s condition constituted an absence of cancer, not cancer in remission or an otherwise dormant disability.  Based on its analysis under the ADA (and parallel Ohio state-law disability discrimination statute), the District Court dismissed Darby’s complaint, delivering a win for employer Childvine.

Although that was the end of this case, it might not have been had Darby approached her situation differently.  Remember, she claimed that she was disabled because she had breast cancer – which she didn’t.  Had she been direct with Childvine and informed it not that she had breast cancer, but instead that she has a genetic mutation which increases her risk of breast cancer, and in response, Childvine then terminated her employment, she may have had a more viable cause of action for discrimination under the federal Genetic Information Nondiscrimination Act (“GINA”).  GINA expressly prohibits discrimination in employment (including hiring, firing, and other conditions of employment) on the basis of genetic information.  Indeed, individuals who carry genetic mutations such as BRCA I, and family history of conditions such as cancer, are precisely the individuals that GINA seeks to protect.  The case thus provides a good reminder that employers must be mindful that although the ADA may not provide protection for individuals based on future disabilities, there may be other protections, under other statutes, that may apply to such individuals.