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Dermatology and the Americans With Disabilities Act: A review of the case law
SPECIAL
REPORT
Dermatology and the Americans With Disabilities Act: A review of the case law Mary L. Curry, MD,a James A. Curry, PhD,c and Clay J. Cockerell, MDb Dallas and Waco, Texas The Americans With Disabilities Act (ADA) defines disability as a physical or mental impairment that substantially limits one or more major life activities. Although dermatology has received relatively little attention in the context of disability law, dermatologic diseases are properly covered by the ADA and are subject to the same criteria as other medical conditions. A Lexis-Nexis search of federal court decisions covering the ADA produced 23 cases dealing with dermatologic impairments as disabilities. In Cehrs v Northeast Ohio Alzheimer Research Center, a federal appeals court held that psoriasis constituted a disability under the Act. Skin diseases not only cause physical and mental impairments, but they are also visible to others. Persons with skin diseases may be “regarded as” disabled, and this can constitute discrimination under the law. (J Am Acad Dermatol 2002;47:926-9.)
A
s a field of medicine, dermatology has received relatively little attention with respect to the concept of disability, especially as the term is applied in the law.1 Most studies of the physical and mental impairments that qualify as disabilities under the Americans With Disabilities Act (ADA or Act) involve diseases such as HIV/AIDS, cancer, cardiovascular disease, diabetes, and numerous conditions that restrict mobility or movement. A Lexis-Nexis search of US Supreme Court, District Court, and Court of Appeals ADA rulings produced 23 cases with dermatologic implications, one of which presented a clear basis for discrimination.
DISCUSSION OF THE ADA The ADA was enacted by the US Congress in 1990 to address the problems facing the disabled in American society. In justifying the need for such legislation, Congress found that “some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older.” An individual is “disabled” if he or she (1) has a physical or mental impairment that substantially limits one or more of his/her major life activities, (2) has a record From the University of Texas, Southwestern Medical School, Dallasa; the Department of Dermatology, University of Texas, Southwestern Medical Center, Dallasb; and the Department of Political Science, Baylor University, Waco.c Funding sources: None. Conflict of interest: None identified. Reprint requests: James A. Curry, PhD, Chair, Department of Political Science, PO Box 97276, Baylor University, Waco, TX 76798. Copyright © 2002 by the American Academy of Dermatology, Inc. 0190-9622/2002/$35.00 ⫹ 0 16/1/128384 doi:10.1067/mjd.2002.128384
926
of such an impairment, or (3) is regarded as having such an impairment.2 Skin diseases are visible and often identified by others; therefore, people with conditions cared for primarily by dermatologists are often regarded by others as having a disability and labeled as such.1 Because of the visibility of dermatologic diseases, it is very likely that the “regarded as” standard could play a key role in dermatology cases under the ADA. It is important to recognize that an individual without any disability whatsoever is protected by the Act if he or she is “regarded as” disabled.2 The Equal Employment Opportunity Commission (EEOC) further defines a physical and mental impairment as: 1. Any physiologic disorder, or condition, cosmetic disfigurement, or anatomic loss affecting one or more of the following body systems: neurologic, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, or 2. Any mental or psychologic disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.3 In the nearly 10 years since the passage of the ADA, the Supreme Court has heard only a handful of cases involving the Act, and none were dermatology related. The Court’s first ADA case was Bragdon v Abbott (1998), in which the Court ruled that asymptomatic HIV infection was a physical impairment that substantially limits one or more of the major life activities of such individual.4,5 Three 1999 decisions held that corrective measures and artificial devices
J AM ACAD DERMATOL VOLUME 47, NUMBER 6
Curry, Curry, and Cockerell 927
must be taken into consideration in determining disabilities.6
noted that a scar may be an impairment under the ADA, but no discrimination existed in this case.8
THE ADA AND DERMATOLOGIC CONDITIONS
Diseases of the skin Fifteen cases were identified that alleged a cutaneous disease or condition as the basis for a disability claim. Three of the 15 referred to “unspecified” skin conditions and were not included in this discussion.9 Only one of the cases, Cehrs v Northeast Ohio Alzheimer’s Research Center and Windsor House, Inc. (1998) passed the Court of Appeals level with a verdict upholding discrimination under the ADA.10 Psoriasis was cited in 3 cases as the basis for a disability. In Gray v Ameritech Corp. (1996) and Devine v Frisch’s Big Boy Restaurant (1997), the courts granted summary judgment to the employer, finding that the psoriasis did not render either plaintiff unable to work.11 However, in Cehrs, the Sixth Circuit Court of Appeals held that Cehrs’s psoriasis demonstrated a prima facie case of discrimination. Psoriasis is defined in the opinion as “a chronic and recurrent disease characterized by dry, well-circumscribed, silvery, scaling papules and plaques of various sizes.” Pustular psoriasis, a severe form of psoriasis, is “characterized by sterile pustules.”10,12 Cehrs’s physician described pustular psoriasis and psoriatic arthritis as “a red-scaled skin appearance with pustules . . . in association with . . . an inflammatory arthritis . . . involving all of [Cehrs’s] joints but specifically her hands, her hips, her knees, and her feet.” In this case, psoriasis was described as potentially life-threatening during “flare-ups” and noticeable in its “dormant stage” by skin lesions. Cehrs’s skin lesions did not directly interfere with her ability to work, but she received weekly medical treatment to control the psoriasis during the dormant stage.10 Cehrs worked for 2 years without incident until her psoriasis flared, triggered by a staphylococcal infection she had contracted earlier that same year. During the flare-up, she was not only unable to work, but she could not perform everyday functions such as driving a car or dialing a telephone. Her previous flare-up had been approximately 8 years earlier. Cehrs’s physician wrote a note to Northeast explaining that Cehrs required a medical leave of absence. She was later terminated upon returning to work.10 In determining whether Cehrs had been fired because of her disability in violation of the ADA, the Circuit Court had to decide whether a “flare-up” of pustular psoriasis constitutes a disability. The employer contended that Cehrs was disabled only during “flare-ups” and relied heavily on an earlier deci-
The ADA definition of a physical impairment relates to dermatology in clear language, referring to “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting . . . the skin. . .”.2,3 Despite the language, very few ADA claims in these areas have been pursued. Most of those filed in Court have resulted in summary judgment for the defendants, meaning that the Court could find “no genuine issue of material fact” in the disability claims filed by the plaintiffs. Although prior cases classified under the ADA have looked at diseases such as HIV and various types of cancer, our search focused on primarily dermatology-related claims, fully realizing that HIV and internal malignancies may produce cutaneous manifestations. The cutaneous manifestations of these infectious and neoplastic diseases were not the focus of the court’s decisions and therefore are not included in the results. Our Lexis-Nexis case search using the key words “Americans with Disabilities Act,” “skin disease,” “cosmetic disfigurement,” and “skin condition” produced a total of 212 case records: 167 from US District Courts and 45 from Courts of Appeal. Each case was reviewed, and 23 cases were identified as having clear dermatologic relevance. Allergic skin reactions and contact dermatitis Seven cases were identified in which the plaintiff alleged a disabling condition resulting from exposure to a wide range of agents, including latex gloves, hydraulic oil, cleaning materials, chemicals, and solvents.7 The disability claims typically referred to contact dermatitis as the underlying condition. In these cases, the rulings were generally unfavorable to the plaintiffs, either because the “disability” did not impair their ability to perform a wide range of jobs or, often, because they failed to file the claim within the legal deadline. Cosmetic disfigurement Our search identified 3 cosmetic disfigurement cases, but two dealt with missing teeth and were eliminated. One case identified a scar as a cosmetic disfigurement. In Van Sickle v Automatic Data Processing, Inc. (1998), the plaintiff, a salesman, alleged that his termination stemmed from his being “regarded as” disabled because of a 6-inch scar under his chin received in an auto accident. In granting summary judgment for the employer, the Court
928 Curry, Curry, and Cockerell
sion, which held that a knee surgery was only a transitory impairment.13 However, according to the Sixth Circuit, Cehrs’s condition more closely resembled the situation in Roush v Weastec, Inc. In that case, Roush, suffering from interstitial cystitis, alleged that she was unable to work without medication and, even when medicated, experienced intermittent pain that required regular doctor visits. The Circuit Court in Roush eventually held that the “bladder infections, though intermittent and temporary, are a characteristic manifestation of this physical impairment and, thus, are a part of the underlying impairment.”14 In a similar ruling, Van Zande v Wisconsin Department of Administration, the Court said: “An intermittent impairment that is a characteristic manifestation of an admitted disability is, we believe, a part of the underlying disability and hence a condition that the employer must reasonably accommodate.”15 According to the Court, “we hold that Cehrs’s case of psoriasis is a physical impairment because of the ongoing nature of the disease and its physiological impact even during its dormant stage.” The inclusion of the dormant stage was consistent with the Supreme Court’s decision in Bragdon v Abbott, which held that a disability may exist even when symptoms are not present.4,5,10 As a result of the flare-ups and her medication, Cehrs’s psoriasis limited a major life activity. Several other cases were resolved against the plaintiff but merit mention because of the skin conditions involved. ● Two children who were refused permission to swim in a community pool because of their keratosis lichenoides chronica did not have a valid ADA claim because swimming in a public pool is not a “major life activity.”16 ● Pseudofolliculitis barbae was claimed as a disabling condition in two cases: Two prison employees allowed to keep their beards nevertheless said they were “regarded as” disabled and treated poorly. The Court ruled against them.17 In the other case, a city policy allowing beards for medical but not for religious reasons was held unconstitutional for violating the Free Exercise of Religion Clause.18 ● A truck driver with Sweet’s syndrome missed the deadline for filing his ADA claim.19 ● Keloids did not impair a worker’s ability to work in a range of jobs.20 ● Plaintiff’s rosacea did not make others regard him as disabled (as an alcoholic), since the testimony showed that he in fact usually smelled of alcohol.21 ● A custodian with erythema multiforme did suffer
J AM ACAD DERMATOL DECEMBER 2002
●
●
from a disability, but his employer, a church, always gave him time off during flare-ups. His termination was due to factors other than his disabling condition.22 Before his HIV diagnosis, plaintiff suffered from porphryia cutanea tarda. The court found no basis for his claim of discrimination, given the facts in the case.23 Parents sued a physician who refused to treat their 2-year-old for respiratory problems because the child had juvenile xanthogranuloma and neurofibromatosis. This case falls under Title III of the ADA dealing with access to public services. In a technical ruling, the Court acknowledged the disability but found that the physician was not individually liable under the Act.24
CONCLUSIONS A review of all federal disability decisions since 1993 produced 23 cases filed under the ADA focusing on dermatologic conditions. Only the Cehrs case held a dermatologic disease (psoriasis) to constitute the basis for discrimination under the Act. The decision is important because it recognizes that some dermatologic conditions may be disabling to the individual even in stages of dormancy. Finally, because of the visible nature of most skin diseases, the issue of being “regarded as” having an impairment is especially relevant. Whether a dermatologic condition rises to the level of a physical impairment or not, it may still be regarded by others as an impairment. That may be a likely scenario in future cases involving dermatology and the ADA. REFERENCES 1. Vaswani SK, Nethercott JR. The Americans With Disabilities Act and dermatologists. Arch Dermatol 1997;133:695-8. 2. Americans With Disabilities Act, 42 USC §12101 et seq. 3. 56 FR 35734, July 26, 1991; 29 CFR 1630 and Appendix, July 1, 1992. 4. Bragdon v Abbott, 118 SCt 2196 (1998). 5. Gostin L, Feldblum C, Webber D. Disability discrimination in America: HIV/AIDS and other health conditions. JAMA 1999;281: 745-52. 6. Sutton v United Airlines, Inc, 119 SCt 2139 (1999); Murphy v United Parcel Service, Inc, 119 SCt 2133 (1999); Albertsons, Inc v Kirkingburg, 119 SC 2162 (1999). 7. White v Boehringer Mannheim Corp, 28 F Supp 2d 827 (1998); Boren v Wolverine Tube, Inc, 966 F Supp 457 (1997); Cantrell v Nashville Electric Service, 1999 US App LEXIS 1207 (1999); Velez v Roche Products, 971 F Supp 56 (1997); Lewis v Independent School District No. I-89, US App LEXIS 32272, 2000 (10th Cir) (1999); Smith v Midland Brake Inc, 180 F3d 1154 (10th Circ) (1999); Doyle v Raley’s Inc, 158 F3d 1012 (Ninth Circ) (1998). 8. Van Sickle v Automatic Data Processing, US App LEXIS 30104 (6th Circ) (1998). 9. Braggs v American Red Cross Blood Services, US Dist, LEXIS 1970 (2002); Warren v Runyan, US Dist LEXIS 6877 (1998); Outlaw v City of Dothan, US Dist LEXIS 21063 (1993).
J AM ACAD DERMATOL VOLUME 47, NUMBER 6
10. Cehrs v Northeast Ohio Alzheimer Research Center and Windsor House, Inc, 155 F3d 775 (6th Circ) (1998). 11. Gray v Ameritech Corp, 937 F Supp 762 (1996); Devine v Frisch’s Big Boy Restaurant, US App LEXIS 21593 (1997). 12. Berkow R, editor. The Merck manual of diagnosis and therapy. 15th ed. New York: WW Norton; 1987. p. 2283-4. Cited in Cehrs v Northeast Ohio Alzheimer Research Center and Windsor House, Inc, 155 F3rd 775 (6th Circ) (1998). 13. Evans v City of Dallas, 861 F2d 846 (5th Circ) (1988). 14. Roush v Weastec, Inc 96 F3d 840 (6th Circ) (1996). 15. Van Zande v Wisconsin Department of Administration, 44 F3d 538, 544 (7th Circ) (1995). 16. Martinez v City of Roy, 141 F3d 1185 (10th Circ) (1998).
Curry, Curry, and Cockerell 929
17. Seaborn v Department of Corrections, 143 F3d 1405 (11th Circ) (1998). 18. FOP Newark Lodge No. 12 v City of Newark, 170 F3d. 1154 (3rd Circ) (1999). 19. Deily v Waste Management of Allentown, 118 F Supp 2d 539 (2000). 20. Sheppard v Diversified Foods & Seasonings, US Dist LEXIS 2042 (1996). 21. Walker v Consolidated Biscuit Co, 116 F3d 1481 (1997). 22. Davis v Cottage Hill Baptist Church, US Dist LEXIS 13288 (1995). 23. Fisher v Trinova Corp, US App LEXIS 26249 (1998). 24. Simenson v Hoffman, US Dist LEXIS 15777 (1995).
REPORT
Dermatology and the Americans With Disabilities Act: A review of the case law Mary L. Curry, MD,a James A. Curry, PhD,c and Clay J. Cockerell, MDb Dallas and Waco, Texas The Americans With Disabilities Act (ADA) defines disability as a physical or mental impairment that substantially limits one or more major life activities. Although dermatology has received relatively little attention in the context of disability law, dermatologic diseases are properly covered by the ADA and are subject to the same criteria as other medical conditions. A Lexis-Nexis search of federal court decisions covering the ADA produced 23 cases dealing with dermatologic impairments as disabilities. In Cehrs v Northeast Ohio Alzheimer Research Center, a federal appeals court held that psoriasis constituted a disability under the Act. Skin diseases not only cause physical and mental impairments, but they are also visible to others. Persons with skin diseases may be “regarded as” disabled, and this can constitute discrimination under the law. (J Am Acad Dermatol 2002;47:926-9.)
A
s a field of medicine, dermatology has received relatively little attention with respect to the concept of disability, especially as the term is applied in the law.1 Most studies of the physical and mental impairments that qualify as disabilities under the Americans With Disabilities Act (ADA or Act) involve diseases such as HIV/AIDS, cancer, cardiovascular disease, diabetes, and numerous conditions that restrict mobility or movement. A Lexis-Nexis search of US Supreme Court, District Court, and Court of Appeals ADA rulings produced 23 cases with dermatologic implications, one of which presented a clear basis for discrimination.
DISCUSSION OF THE ADA The ADA was enacted by the US Congress in 1990 to address the problems facing the disabled in American society. In justifying the need for such legislation, Congress found that “some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older.” An individual is “disabled” if he or she (1) has a physical or mental impairment that substantially limits one or more of his/her major life activities, (2) has a record From the University of Texas, Southwestern Medical School, Dallasa; the Department of Dermatology, University of Texas, Southwestern Medical Center, Dallasb; and the Department of Political Science, Baylor University, Waco.c Funding sources: None. Conflict of interest: None identified. Reprint requests: James A. Curry, PhD, Chair, Department of Political Science, PO Box 97276, Baylor University, Waco, TX 76798. Copyright © 2002 by the American Academy of Dermatology, Inc. 0190-9622/2002/$35.00 ⫹ 0 16/1/128384 doi:10.1067/mjd.2002.128384
926
of such an impairment, or (3) is regarded as having such an impairment.2 Skin diseases are visible and often identified by others; therefore, people with conditions cared for primarily by dermatologists are often regarded by others as having a disability and labeled as such.1 Because of the visibility of dermatologic diseases, it is very likely that the “regarded as” standard could play a key role in dermatology cases under the ADA. It is important to recognize that an individual without any disability whatsoever is protected by the Act if he or she is “regarded as” disabled.2 The Equal Employment Opportunity Commission (EEOC) further defines a physical and mental impairment as: 1. Any physiologic disorder, or condition, cosmetic disfigurement, or anatomic loss affecting one or more of the following body systems: neurologic, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, or 2. Any mental or psychologic disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.3 In the nearly 10 years since the passage of the ADA, the Supreme Court has heard only a handful of cases involving the Act, and none were dermatology related. The Court’s first ADA case was Bragdon v Abbott (1998), in which the Court ruled that asymptomatic HIV infection was a physical impairment that substantially limits one or more of the major life activities of such individual.4,5 Three 1999 decisions held that corrective measures and artificial devices
J AM ACAD DERMATOL VOLUME 47, NUMBER 6
Curry, Curry, and Cockerell 927
must be taken into consideration in determining disabilities.6
noted that a scar may be an impairment under the ADA, but no discrimination existed in this case.8
THE ADA AND DERMATOLOGIC CONDITIONS
Diseases of the skin Fifteen cases were identified that alleged a cutaneous disease or condition as the basis for a disability claim. Three of the 15 referred to “unspecified” skin conditions and were not included in this discussion.9 Only one of the cases, Cehrs v Northeast Ohio Alzheimer’s Research Center and Windsor House, Inc. (1998) passed the Court of Appeals level with a verdict upholding discrimination under the ADA.10 Psoriasis was cited in 3 cases as the basis for a disability. In Gray v Ameritech Corp. (1996) and Devine v Frisch’s Big Boy Restaurant (1997), the courts granted summary judgment to the employer, finding that the psoriasis did not render either plaintiff unable to work.11 However, in Cehrs, the Sixth Circuit Court of Appeals held that Cehrs’s psoriasis demonstrated a prima facie case of discrimination. Psoriasis is defined in the opinion as “a chronic and recurrent disease characterized by dry, well-circumscribed, silvery, scaling papules and plaques of various sizes.” Pustular psoriasis, a severe form of psoriasis, is “characterized by sterile pustules.”10,12 Cehrs’s physician described pustular psoriasis and psoriatic arthritis as “a red-scaled skin appearance with pustules . . . in association with . . . an inflammatory arthritis . . . involving all of [Cehrs’s] joints but specifically her hands, her hips, her knees, and her feet.” In this case, psoriasis was described as potentially life-threatening during “flare-ups” and noticeable in its “dormant stage” by skin lesions. Cehrs’s skin lesions did not directly interfere with her ability to work, but she received weekly medical treatment to control the psoriasis during the dormant stage.10 Cehrs worked for 2 years without incident until her psoriasis flared, triggered by a staphylococcal infection she had contracted earlier that same year. During the flare-up, she was not only unable to work, but she could not perform everyday functions such as driving a car or dialing a telephone. Her previous flare-up had been approximately 8 years earlier. Cehrs’s physician wrote a note to Northeast explaining that Cehrs required a medical leave of absence. She was later terminated upon returning to work.10 In determining whether Cehrs had been fired because of her disability in violation of the ADA, the Circuit Court had to decide whether a “flare-up” of pustular psoriasis constitutes a disability. The employer contended that Cehrs was disabled only during “flare-ups” and relied heavily on an earlier deci-
The ADA definition of a physical impairment relates to dermatology in clear language, referring to “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting . . . the skin. . .”.2,3 Despite the language, very few ADA claims in these areas have been pursued. Most of those filed in Court have resulted in summary judgment for the defendants, meaning that the Court could find “no genuine issue of material fact” in the disability claims filed by the plaintiffs. Although prior cases classified under the ADA have looked at diseases such as HIV and various types of cancer, our search focused on primarily dermatology-related claims, fully realizing that HIV and internal malignancies may produce cutaneous manifestations. The cutaneous manifestations of these infectious and neoplastic diseases were not the focus of the court’s decisions and therefore are not included in the results. Our Lexis-Nexis case search using the key words “Americans with Disabilities Act,” “skin disease,” “cosmetic disfigurement,” and “skin condition” produced a total of 212 case records: 167 from US District Courts and 45 from Courts of Appeal. Each case was reviewed, and 23 cases were identified as having clear dermatologic relevance. Allergic skin reactions and contact dermatitis Seven cases were identified in which the plaintiff alleged a disabling condition resulting from exposure to a wide range of agents, including latex gloves, hydraulic oil, cleaning materials, chemicals, and solvents.7 The disability claims typically referred to contact dermatitis as the underlying condition. In these cases, the rulings were generally unfavorable to the plaintiffs, either because the “disability” did not impair their ability to perform a wide range of jobs or, often, because they failed to file the claim within the legal deadline. Cosmetic disfigurement Our search identified 3 cosmetic disfigurement cases, but two dealt with missing teeth and were eliminated. One case identified a scar as a cosmetic disfigurement. In Van Sickle v Automatic Data Processing, Inc. (1998), the plaintiff, a salesman, alleged that his termination stemmed from his being “regarded as” disabled because of a 6-inch scar under his chin received in an auto accident. In granting summary judgment for the employer, the Court
928 Curry, Curry, and Cockerell
sion, which held that a knee surgery was only a transitory impairment.13 However, according to the Sixth Circuit, Cehrs’s condition more closely resembled the situation in Roush v Weastec, Inc. In that case, Roush, suffering from interstitial cystitis, alleged that she was unable to work without medication and, even when medicated, experienced intermittent pain that required regular doctor visits. The Circuit Court in Roush eventually held that the “bladder infections, though intermittent and temporary, are a characteristic manifestation of this physical impairment and, thus, are a part of the underlying impairment.”14 In a similar ruling, Van Zande v Wisconsin Department of Administration, the Court said: “An intermittent impairment that is a characteristic manifestation of an admitted disability is, we believe, a part of the underlying disability and hence a condition that the employer must reasonably accommodate.”15 According to the Court, “we hold that Cehrs’s case of psoriasis is a physical impairment because of the ongoing nature of the disease and its physiological impact even during its dormant stage.” The inclusion of the dormant stage was consistent with the Supreme Court’s decision in Bragdon v Abbott, which held that a disability may exist even when symptoms are not present.4,5,10 As a result of the flare-ups and her medication, Cehrs’s psoriasis limited a major life activity. Several other cases were resolved against the plaintiff but merit mention because of the skin conditions involved. ● Two children who were refused permission to swim in a community pool because of their keratosis lichenoides chronica did not have a valid ADA claim because swimming in a public pool is not a “major life activity.”16 ● Pseudofolliculitis barbae was claimed as a disabling condition in two cases: Two prison employees allowed to keep their beards nevertheless said they were “regarded as” disabled and treated poorly. The Court ruled against them.17 In the other case, a city policy allowing beards for medical but not for religious reasons was held unconstitutional for violating the Free Exercise of Religion Clause.18 ● A truck driver with Sweet’s syndrome missed the deadline for filing his ADA claim.19 ● Keloids did not impair a worker’s ability to work in a range of jobs.20 ● Plaintiff’s rosacea did not make others regard him as disabled (as an alcoholic), since the testimony showed that he in fact usually smelled of alcohol.21 ● A custodian with erythema multiforme did suffer
J AM ACAD DERMATOL DECEMBER 2002
●
●
from a disability, but his employer, a church, always gave him time off during flare-ups. His termination was due to factors other than his disabling condition.22 Before his HIV diagnosis, plaintiff suffered from porphryia cutanea tarda. The court found no basis for his claim of discrimination, given the facts in the case.23 Parents sued a physician who refused to treat their 2-year-old for respiratory problems because the child had juvenile xanthogranuloma and neurofibromatosis. This case falls under Title III of the ADA dealing with access to public services. In a technical ruling, the Court acknowledged the disability but found that the physician was not individually liable under the Act.24
CONCLUSIONS A review of all federal disability decisions since 1993 produced 23 cases filed under the ADA focusing on dermatologic conditions. Only the Cehrs case held a dermatologic disease (psoriasis) to constitute the basis for discrimination under the Act. The decision is important because it recognizes that some dermatologic conditions may be disabling to the individual even in stages of dormancy. Finally, because of the visible nature of most skin diseases, the issue of being “regarded as” having an impairment is especially relevant. Whether a dermatologic condition rises to the level of a physical impairment or not, it may still be regarded by others as an impairment. That may be a likely scenario in future cases involving dermatology and the ADA. REFERENCES 1. Vaswani SK, Nethercott JR. The Americans With Disabilities Act and dermatologists. Arch Dermatol 1997;133:695-8. 2. Americans With Disabilities Act, 42 USC §12101 et seq. 3. 56 FR 35734, July 26, 1991; 29 CFR 1630 and Appendix, July 1, 1992. 4. Bragdon v Abbott, 118 SCt 2196 (1998). 5. Gostin L, Feldblum C, Webber D. Disability discrimination in America: HIV/AIDS and other health conditions. JAMA 1999;281: 745-52. 6. Sutton v United Airlines, Inc, 119 SCt 2139 (1999); Murphy v United Parcel Service, Inc, 119 SCt 2133 (1999); Albertsons, Inc v Kirkingburg, 119 SC 2162 (1999). 7. White v Boehringer Mannheim Corp, 28 F Supp 2d 827 (1998); Boren v Wolverine Tube, Inc, 966 F Supp 457 (1997); Cantrell v Nashville Electric Service, 1999 US App LEXIS 1207 (1999); Velez v Roche Products, 971 F Supp 56 (1997); Lewis v Independent School District No. I-89, US App LEXIS 32272, 2000 (10th Cir) (1999); Smith v Midland Brake Inc, 180 F3d 1154 (10th Circ) (1999); Doyle v Raley’s Inc, 158 F3d 1012 (Ninth Circ) (1998). 8. Van Sickle v Automatic Data Processing, US App LEXIS 30104 (6th Circ) (1998). 9. Braggs v American Red Cross Blood Services, US Dist, LEXIS 1970 (2002); Warren v Runyan, US Dist LEXIS 6877 (1998); Outlaw v City of Dothan, US Dist LEXIS 21063 (1993).
J AM ACAD DERMATOL VOLUME 47, NUMBER 6
10. Cehrs v Northeast Ohio Alzheimer Research Center and Windsor House, Inc, 155 F3d 775 (6th Circ) (1998). 11. Gray v Ameritech Corp, 937 F Supp 762 (1996); Devine v Frisch’s Big Boy Restaurant, US App LEXIS 21593 (1997). 12. Berkow R, editor. The Merck manual of diagnosis and therapy. 15th ed. New York: WW Norton; 1987. p. 2283-4. Cited in Cehrs v Northeast Ohio Alzheimer Research Center and Windsor House, Inc, 155 F3rd 775 (6th Circ) (1998). 13. Evans v City of Dallas, 861 F2d 846 (5th Circ) (1988). 14. Roush v Weastec, Inc 96 F3d 840 (6th Circ) (1996). 15. Van Zande v Wisconsin Department of Administration, 44 F3d 538, 544 (7th Circ) (1995). 16. Martinez v City of Roy, 141 F3d 1185 (10th Circ) (1998).
Curry, Curry, and Cockerell 929
17. Seaborn v Department of Corrections, 143 F3d 1405 (11th Circ) (1998). 18. FOP Newark Lodge No. 12 v City of Newark, 170 F3d. 1154 (3rd Circ) (1999). 19. Deily v Waste Management of Allentown, 118 F Supp 2d 539 (2000). 20. Sheppard v Diversified Foods & Seasonings, US Dist LEXIS 2042 (1996). 21. Walker v Consolidated Biscuit Co, 116 F3d 1481 (1997). 22. Davis v Cottage Hill Baptist Church, US Dist LEXIS 13288 (1995). 23. Fisher v Trinova Corp, US App LEXIS 26249 (1998). 24. Simenson v Hoffman, US Dist LEXIS 15777 (1995).