Does the Americans with Disabilities Act Protect Supreme Court Nominees?

A CIDNY original article, May 27, 2009

In President Obama's speech nominating Sandra Sotomayor to the Supreme Court, he mentioned her Type I diabetes in a context suggesting that while others told her it would limit her achievements, she broke through this stereotype.

The President said, "It's my understanding that Judge Sotomayor's interest in the law was sparked as a young girl by reading the Nancy Drew series. And that when she was diagnosed with diabetes at the age of 8, she was informed that people with diabetes can't grow up to be police officers or private investigators like Nancy Drew. In essence she was told she'd have to scale back her dreams."

However, it appears that the young Sotomayor took the warnings to heart and changed her dream from being like Nancy Drew to being a judge like the ones on the Perry Mason show. The obvious irony was that she was diverted to an even more ambitious dream.

It will be interesting to see how Congress, the media and Sotomayor herself treat her chronic illness during the confirmation hearings. Her opponents are unlikely to suggest that she will be unqualified to serve on the Supreme Court because she is a woman, a Latina, and a product of a public housing project in the Bronx (among many other experiences) .

However, it seems already to be fair game to speculate about her diabetes, even though her extraordinarily successful career shows that it has not interfered with her ability to work.

Should Congress avoid mentioning her disability because the Americans with Disabilities Act (ADA) bars employers from asking about the "existence, nature or severity of a disability"? Is Sotomayor covered by the ADA?

She would not be considered "disabled" under the category that defines disability as "an impairment that limits one or more major life activities". However, there is a category that protects people who are considered by others to have a disabling condition, and the quotations below show that Sotomayor fits that definition.

Imagine if remarks like those below were made about Sotomayor being a woman or a Latina, or if men were rejected from the Supreme Court because they don't live as long as women:

From " ‘Kid From the Bronx’ With Hopes and Doubts, " by Neil A. Lewis, May 26, 2009, New York Times:
Her diabetes, for which she takes insulin daily, has not proved to be a problem, but some have speculated as to whether her illness could or should be an issue in terms of her projected longevity on the court, because of the potential for complications.

From "Sotomayor's Diabetes: Will It Be a Handicap?" by Alice Park Tuesday, May 26, 2009, on the TIME Magazine website:
The nominee's chronic condition is worth noting, since it puts her at increased risk of several serious medical conditions, including heart disease, kidney problems, blindness and nerve damage — and an increased risk of early death. Studies show that adults with diabetes are two to four times more likely than non-diabetics to die of heart disease. But when treated correctly, say doctors, Type 1 diabetes patients are able to lead relatively healthy lives. The latest data suggest that patients can successfully manage the disease for four or five decades with no serious health complications.

From "Sotomayor's Medical History Sparks Wider Debate," by Sam Stein on the Huffington Post blog:

A frontrunner for the post, Judge Sonia Sotomayor of U. S. Court of Appeals for the Second Circuit, is a Type One diabetic. It is one of the more compelling aspects to an already compelling biography. And while hardly a debilitating disease -- indeed, recent medical advancements have made it quite manageable to live with -- there remain enough late-in-life health implications to have sparked debate in legal, political and medical circles. Just how relevant are medical issues to Sotomayor's or any other potential Supreme Court nomination?
"It is obligatory [to look at this]” said Jeffrey Toobin, a legal analyst for CNN and author of The Nine: Inside The Secret World of the Supreme Court. “The issue of duration of service for a Supreme Court nominee is critical to any president, and thus health and medical issues are very much at the forefront of their considerations... It would be irresponsible for any president not to make the health of the nominee a major subject of concern, because presidents want decades of service from their nominees.”
Added another political operative who has worked on judicial nominations in the past: “I don't even think it is very sensitive. I think it is just obvious.... It is part of who we are. And so I think you find that there is almost in this day and age, there is almost no area of inquiry that is out of bounds.”

CIDNY hopes that Congress will look to a recent court decision as a guide:

D.C. Federal Court Rules People with Diabetes Cannot be Denied Employment Based on Disease Management, Press Release, American Diabetes Association, May 21, 2009

Yesterday, a jury in the United States District Court for the District of Columbia found that the Federal Bureau of Investigation (FBI) discriminated against Jeff Kapche when it refused to hire him as a Special Agent because of his diabetes.

The American Diabetes Association (ADA) celebrated the verdict. "ADA has long advocated that each person with diabetes should be judged based on his or her merits, not on stereotypes. This is an important victory as we march towards a world in which each person with diabetes is judged fairly," said John Griffin, Vice-Chair of the American Diabetes Association and one of the lawyers who represented Kapche.

In the case, Kapche v. Holder, the FBI contested that Jeff Kapche, a 15-year law enforcement veteran, could not perform the job of an FBI Special Agent because he chose to manage his type 1 diabetes with insulin injections. The FBI argued that its policy requiring Special Agents to manage their diabetes with insulin pumps was necessary given the unpredictable nature of the job, ignoring both medical evidence about injection therapy and Kapche's own impeccable record of diabetes management without complications.

"I am thrilled the jury understood that the FBI’s decision was discriminatory and that I could be a good Special Agent," said Kapche. "I don't want anyone else to go through what I have experienced and I hope this jury verdict sends the message that employers should look at each person as an individual, not simply someone with a disease."

Kapche was also represented by Kathy Butler, a member of ADA's Legal Advocacy Subcommittee. "The jury understood that ignorance of diabetes leads to discrimination and that is just plain wrong. Because of Jeff Kapche, others with diabetes no longer need to check their dreams at the door," said Butler.

Kapche, who is currently a detective with the Fort Bend County, Texas Sheriff's Department, had previous experience fighting discrimination when he was denied employment with the San Antonio Police Department, also because of his diabetes. That case wound up in the United States Court of Appeals for the Fifth Circuit which ruled such blanket bans were unlawful. Before applying to the FBI, Kapche was assured that his diabetes would not stand in the way of his becoming a Special Agent.