When is sexual dysfunction a disability? The First Circuit had the opportunity to address this issue, as well as the issue of harassment under the ADA in a graphic case involving a Wal-Mart employee who was treated for impotence with a penile implant.
There is not much law in this area, because typically these types of problems do not become known to coworkers. However, when the “girls in personnel” (a quote from the opinion) got a hold of this luckless individual’s benefits paperwork for the operation, word quickly spread through the facility. Plaintiff then suffered four years of relentless ridicule ranging from comments about his being impotent to remarks about his prowess because of the artificial enhancement.
The initial and most important issue, of course, is whether the plaintiff was disabled. Must practitioners in this area of law agree that the key to knocking out an ADA case is by showing that the plaintiff cannot meet the statute’s stringent requirements for being disabled. Given that a factfinder must consider the curative effects of any mitigating measures under the Sutton trilogy, it would seem that a reasonably good case could be made that the plaintiff no longer suffered from a limitation on a major life activity, and therefore had no protection under the law. But the court never reached this issue because Wal-Mart failed to raise it at the conclusion of the presentation of evidence, which precluded review on appeal. Instead, the issue was resolved purely by the jury, which had no difficulty finding a disability as a precondition to awarding damages for four years of sexual taunting.
Similarly, the court affirmed the hostile work environment based on disability finding, noting that the affirmative defenses available under Burlington Industries were not applicable where everyone in the entire facility was apparently involved in teasing and harassing plaintiff, despite his protests.
The only real positive for Wal-Mart in this whole mess was the fact that plaintiff apparently neglected to put on evidence that he looked for work or was unable to get a job and so was not entitled to an equitable remedy of back or front pay. This limited the damage exposure to Wal-Mart considerably and the Court of Appeals affirmed a relatively small verdict of $236,000. It could have been a lot worse.