Defense Digest

Third Circuit Find Kidney Failure Impairs A Major Life Activity Under The ADA

The Third U.S. Circuit Court of Appeals ruled in Fiscus v. Wal-Mart Stores, Inc. that a physical impairment that limits an individual’s ability to cleanse and eliminate bodily waste, commonly associated with end-stage renal disease, impairs a major life activity under the Americans with Disabilities Act ("ADA"), entitling the employee to reasonable accommodation.

In July of 1998, Cathy Fiscus was diagnosed as having end-stage renal disease, requiring hemodyalisis four to six hours, three times a week. During this time, she continued to work at Sam's Club, a division of Wal-Mart. In December of 1998, Fiscus changed her treatment to peritoneal dialysis, which required her to administer a 45-minute dialysis process to herself every four to six hours each day. At the beginning of this treatment, Fiscus was allowed to perform the dialysis at her work premises. In January 1999, after she indicated on a company form that she was not able to perform functions without reasonable accommodation, Fiscus was removed from her night shift position and offered a day shift position of "Greeter." She requested that she be allowed to perform dialysis on Wal-Mart’s premises. This request for accommodation was denied, and Fiscus was informed there were no available positions for her. Fiscus subsequently took disability leave at the suggestion of her manager.

In September 1999, Fiscus had a kidney transplant and was unable to work for nearly six months. Wal-Mart fired Fiscus because she had been unable to return to work within a year of her taking disability leave. Fiscus sued Wal-Mart under the ADA for failing to accommodate her disability and for terminating her from her job because of her disability.

Fiscus filed suit alleging that renal disease "is a disability within the ADA as it is a physical impairment that substantially limits major life activities." Fiscus alleged that "processing body waste and cleaning her blood" constituted the major life activity, which her kidney failure had substantially limited.

The U.S. District Court disagreed, finding that the impairment of an organ does not in itself constitute a limitation of a life activity under the ADA. It stated that to succeed in her claim, Fiscus would have to show that the inability to cleanse blood limited her in doing something else that would be described as a life activity.

The Court of Appeals reversed, finding that Fiscus had never alleged that her disease limited her in the life activity of "kidney function" but, rather, in her major life activities of "cleansing her blood and processing waste." The court found that a "major life activity need not constitute volitional or public behavior; it need not be an activity that is performed regularly or frequently; but it does have to have importance to human life comparable to that of activities listed in the regulatory examples" under the Rehabilitation Act of 1973. The court stated that "what matters is a broad practical assessment of whether an individual’s ability to pursue the major life activity is limited by the physical impairment or condition from which he or she suffers."

The court further emphasized that the "touchstone of a major life activity is its importance or significance" and that an "activity which is ‘central to the life process’ expressly meets that test." Moreover, the court concluded that by "that standard, processing and eliminating waste from the blood qualifies as a major life activity because, in their absence, death results. In this respect, waste elimination is comparable to other life-sustaining activities, such as breathing, eating, or drinking, all of which have been held to be major life activities within the statute."

The Third Circuit expanded upon the rule outlined in the U.S. Supreme Court's 1999 decision in Sutton v. United Airlines, in which the Court reasoned that courts must assess the limitation on a major life activity in light of any corrective measures plaintiff uses to mitigate her impairment. The Third Circuit held that "any evaluation of the mitigating effects of corrective measures must also consider side-effects or other collateral limitations caused by those corrective measures."

The Third Circuit also noted that "the limitations caused by Fiscus's kidney failure must be weighed in light of her ability to conduct peritoneal dialysis but with due regard for any side-effects or residual effects," such as the time-consuming and cumbersome processes of dialysis, which limits her mobility and other aspects of daily living. The Third Circuit remanded the case to the District Court, directing the court to "consider whether dialysis eliminated any substantial limitation on the major life activities of cleansing blood and caring for one’s self, bearing in mind collateral and side-effects."

*Cynthia is an associate in our Philadelphia, PA office. She can be reached at (215) 575-2784 or cbrennan@mdwcg.com.