Amicus Curiae Brief — Marytza Golden, Petitioner v. Indianapolis Housing Agency

Supreme Court briefMar 8, 2018

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No. 17-1113

IN THE

MARYTZA GOLDEN, Petitioner,

INDIANAPOLIS HOUSING AGENCY, Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICI CURIAE CANCERLINC, ANN

C. HODGES, PHYLLIS KATZ, NATIONAL

COALITION FOR CANCER SURVIVORSHIP,

AND BARBARA HOFFMAN IN SUPPORT

OF PETITIONER

Brian Wolfman

Counsel of Record

GEORGETOWN LAW

APPELLATE COURTS

IMMERSION CLINIC

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 661-6582

wolfmanb@georgetown.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI ................................................ 1

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 6

The Seventh Circuit’s per se rule would harm

many people battling cancer and other serious

diseases. ................................................................. 8

A. Cancer affects millions of working-age

Americans. ...................................................... 8

B. Treatment for cancer and other serious

illnesses often takes more than a month. ..... 9

C. Denying ADA protection for people

requiring more than a month of leave

would harm people with other serious

illnesses. ....................................................... 12

D. Lack of workplace accommodations can

lead to devastating medical and financial

hardship. ....................................................... 15

II. The Seventh Circuit’s per se rule excludes a

significant portion of cancer survivors, at odds

with the ADA’s text and history. ........................ 17

III. The Seventh Circuit’s per se rule creates legal

and practical anomalies. ..................................... 22

IV. The Seventh Circuit mistakenly relied on the

FMLA to narrow the ADA’s coverage................. 24

CONCLUSION .......................................................... 26

TABLE OF AUTHORITIES

Page(s)

Cases

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) .............................................. 25

Ellison v. Software Spectrum, Inc.,

85 F.3d 187 (5th Cir. 1996) .................................. 20

Garcia-Ayala v. Lederle Parenterals, Inc.,

212 F.3d 638 (1st Cir. 2000)................................... 4

Nave v. Wooldridge Constr.,

No. 96-2891, 1997 WL 379174 (E.D. Pa.

June 30, 1997) ...................................................... 20

Severson v. Heartland Woodcraft, Inc.,

872 F.3d 476 (7th Cir. 2017) ................ 7, 22, 23, 24

U.S. Airways, Inc. v. Barnett,

535 U.S. 391 (2002) ....................................... 7, 9-10

Statutes

29 U.S.C. § 2601(b) .................................................... 25

29 U.S.C. § 2612(a)(1) .......................................... 24, 25

29 U.S.C. § 2651(a) ................................................ 6, 24

42 U.S.C. § 12101(2) .................................................. 21

42 U.S.C. § 12101(a)(3) ................................................ 6

iii

42 U.S.C. § 12101(b)(1) ................................................ 6

42 U.S.C. § 12102(1)(A) ............................................... 6

42 U.S.C. § 12102(2)(A) ............................................... 6

42 U.S.C. § 12102(2)(B) ..................................... 5, 6, 21

42 U.S.C § 12102(4)(D) .................................... 5, 21, 23

42 U.S.C. § 12111(8) .............................................. 6, 22

42 U.S.C. § 12111(9) .................................................. 25

42 U.S.C. § 12111(9)(B) ......................................... 7, 22

42 U.S.C. § 12112(a) .................................................... 6

42 U.S.C. § 12112(b)(5)(A) ........................................... 7

ADA Amendments Act of 2008, Pub. L. No.

110-325, 122 Stat. 3553 (2008) ...................... 20, 21

Regulatory Materials

29 C.F.R. Part 1630, App. § 1630.2(o)................... 7, 22

U.S. Equal Emp. Opportunity Comm’n,

Enforcement Guidance: Reasonable

Accommodation and Undue Hardship

Under the Americans with Disabilities

Act (Mar. 1 1999), 1999 WL33305876 ................. 20

U.S. Equal Emp. Opportunity Comm’n,

EEOC-M1A, A Technical Assistance

Manual on the Emp’t Provisions (Title I)

of the Americans with Disabilities Act,

App. E (1995) ........................................................ 19

U.S. Equal Emp. Opportunity Comm’n,

EEOC-M1A, A Technical Assistance

Manual on the Employment Provisions

(Title I) of the Americans with

Disabilities Act (1992) ..................................... 19-20

Legislative Materials

Americans with Disabilities Act of 1988:

Joint Hearing on S. 2345 Before the

Subcomm. on the Handicapped of the S.

Comm. on Labor and Human Resources

and the Subcomm. on Select Educ. of the

H. Comm. on Educ. and Labor, 100th

Cong. (1988) .......................................................... 19

Americans with Disabilities Act of 1989:

Hearing on H.R. 2273 Before the

Subcomm. on Civil and Constitutional

Rights of the H. Comm. on the Judiciary,

101st Cong. (1989) ................................................ 19

Americans with Disabilities Act of 1989:

Hearings on S. 933 Before the Subcomm.

on the Handicapped of the S. Comm. on

Labor and Human Resources, 101st

Cong. (1989) ..................................................... 18-19

H.R. Rep. No. 101-485, pt. 2 (1990) .......................... 19

Hearing on Discrimination Against Cancer

Victims and the Handicapped: Hearing

before the Subcomm. On Emp’t

Opportunities of the H. Comm. on Educ.

and Labor, 100th Cong. (1987) ...................... 17, 18

Emp’t Discrimination Against Cancer

Victims and the Handicapped: Hearing

on H.R. 370 and H.R. 1294 before the

Subcomm. on Emp’t Opportunities of the

H. Comm. on Educ. and Labor, 99th

Cong. 10, 19 (1985) ............................................... 18

Hearing on S. 2345 Before the Subcomm. on

the Handicapped of the S. Comm. on

Labor and Human Resources and the

Subcomm. on Select Educ. of the H.

Comm. on Educ. and Labor, 100th Cong.

(1988) .................................................................... 19

S. Rep. No. 101-116 (1989) ........................................ 19

Other Authorities

2016 Annual Report, United Network for

Organ Sharing (UNOS),

https://unos.org/about/annualreport/2016-annual-report/. .................................. 12

Anja Mehnert, Employment and workrelated issues in cancer survivors, 77

Critical Reviews in Oncology/Hematology

109 (2011) ............................................ 10, 11, 15-16

Ann C. Hodges, Working with Cancer: How

the Law Can Help Survivors Maintain

Employment, 90 Wash. L. Rev. 1039

(2015) .......................................................... 8, 16, 17

Barbara Hoffman, Between a Disability and

a Hard Place: The Cancer Survivors’

Catch-22 of Proving Disability Status

Under the Americans with Disabilities

Act, 59 Md. L. Rev. 352 (2000)............................. 20

Cancer Facts & Figures 2018, Am. Cancer

Soc’y (2018),

https://www.cancer.org/content/dam/canc

er-org/research/cancer-facts-andstatistics/annual-cancer-facts-andfigures/2018/cancer-facts-and-figures2018.pdf .............................................................. 8, 9

Cancer Treatment & Survivorship Facts &

Figures 2016-2017, Am. Cancer Soc’y

(2016),

https://www.cancer.org/content/dam/canc

er-org/research/cancer-facts-andstatistics/cancer-treatment-andsurvivorship-facts-and-figures/cancertreatment-and-survivorship-facts-andfigures-2016-2017.pdf ........................................ 8, 9

Cathy J. Bradley, Kathleen Oberst &

Maryjean Schenk, Absenteeism from

Work: The Experience of Employed

Breast and Prostate Cancer Patients in

the Months Following Diagnosis, 15

Psycho-Oncology 737 (2006) .......................... 10, 11

vii

Coronary Artery Bypass Grafting, National

Heart, Lung, and Blood Institute,

https://www.nhlbi.nih.gov/healthtopics/coronary-artery-bypass-grafting ............... 14

Data, UNOS,

https://unos.org/data/ (last visited Mar. 4,

2017) ..................................................................... 12

David U. Himmelstein et al., Medical

Bankruptcy in the United States, 2007:

Results of a National Study, 122 Am. J.

Med. 741 (2009) .............................................. 16, 17

Dialysis, National Kidney Foundation,

https://www.kidney.org/atoz/content/

dialysisinfo ........................................................... 13

Emelia J. Benjamin et al., Heart Disease

and Stroke Statistics – 2017 Update A

Report from the Am. Heart Ass’n, 137

Circulation e146 (2017) .................................. 14, 15

Heart Valve Surgery Recovery and Follow

Up, Am. Heart Ass’n,

http://www.heart.org/HEARTORG/Condi

tions/More/HeartValveProblemsandDise

ase/Heart-Valve-Surgery-Recovery-andFollow-Up_UCM_450700_Article.

jsp#.WnOLw6inE2w. ........................................... 15

How Chemotherapy Affects the Immune

System, Breastcasncer.org,

http://www.breastcancer.org/tips/immune

/cancer/chemo ....................................................... 10

viii

Kidney Disease Statistics for the United

States, National Institute of Diabetic and

Digestive and Kidney Diseases,

https://www.niddk.nih.gov/healthinformation/health-statistics/kidneydisease. ..................................................... 12, 13, 14

Kidney Transplant, National Kidney

Foundation,

https://www.kidney.org/atoz/content/kidn

ey-transplant .................................................. 13, 14

Liver Transplant, Mayo Clinic,

https://www.mayoclinic.org/testsprocedures/liver-trans

plant/about/pac-20384842 . .................................. 13

Mastectomy, Am. Cancer Soc’y,

https://www.cancer.org/cancer/breastcancer/treatment/surgery-for-breastcancer/mastectomy.html. ..................................... 11

Options and Considerations for Heart Valve

Surgery, Am. Heart Ass’n,

http://www.heart.org/HEARTORG/

Conditions/More/HeartValveProblemsan

dDisease/Options-and-Considerationsfor-Heart-ValveSurgery_UCM_450787_

Article.jsp#.WnOJ1qinE2w .................................. 15

Sequence of Treatments, Breastcancer.org,

http://www.breastcancer.org/treatment/pla

nning/sequence ............................................... 11, 12

Stage IA & IB Treatment Options,

Breastcancer.org,

http://www.breastcancer.org/treatment/

planning/cancer_stage/stage_i ........................... 11

Types of Cancer Treatement, National

Cancer Institute,

https://www.cancer.gov/aboutcancer/treatment/types ....................................... 10

What is Cancer?, Am. Cancer Soc’y,

https://www.cancer.org/cancer/cancerbasics/what-is-cancer.html .................................. 21

INTEREST OF AMICI1

Amicus CancerLINC is a multi-purpose nonprofit organization that seeks to ease the burden of

cancer by providing education and referral to legal

resources, financial guidance, and community

services. Its staff and network of attorneys work to

ensure that no cancer patient goes without necessary

support services.

Amici Ann Hodges and Phyllis Katz are cancer

survivors and the cofounders of CancerLINC. Amicus

Hodges is Professor Emerita at the University of

Richmond Law School. She is the author of several

scholarly articles that bear on the issues in this case.

Amicus Katz is an adjunct professor at the University

of Richmond Law School. For a dozen years, she was

the Director of the former Department of Employee

Relations Counselors of the Commonwealth of

Virginia.

Amicus

National

Coalition

for

Cancer

Survivorship is a nonprofit that advocates for quality

care for all people touched by cancer. It has worked

with legislators and policy makers to represent cancer

patients and survivors to improve their quality of care

and quality of life.

Amicus Barbara Hoffman is a cancer survivor.

She is one of the founders of the National Coalition for

Cancer Survivorship and of the National Cancer Legal

Counsel of record for all parties received notice at least

ten days prior to the due date of amici’s intention to file this brief.

The parties have consented to this filing. No counsel for a party

authored this brief in whole or in part, and no person other than

amici, its members, or its counsel made a monetary contribution

to the preparation or submission of this brief.

Services Network. She is an Assistant Teaching

Professor of Law at Rutgers Law School and has

written extensively on employment rights of cancer

survivors.

Amici believe that, if allowed to stand, the

Seventh Circuit’s decision challenged here would

undermine the employment protections for cancer

survivors that Congress established under the

Americans with Disabilities Act.

INTRODUCTION

In 1991, amicus Phyllis Katz, then a single mother

of two high-school children, was diagnosed with breast

cancer. She had a mastectomy that revealed the

cancer had spread to her lymph nodes. Despite

extensive radiation and chemotherapy, Phyllis was

diagnosed with Stage IV cancer in 1994—the cancer

had spread to her spine. The only treatment thought

effective was a bone marrow transplant. Phyllis knew

that she would have to undergo extensive daily

chemotherapy for about a month-and-a-half, then

have a procedure to remove her white blood cells,

followed by a month’s hospitalization for the

transplant, and then a month or more of home

confinement and isolation. So, she went to her

employer to disclose her need for leave and its likely

duration. Her employer immediately responded that

she was valued and it would accommodate any

necessary leave. Phyllis worked every day except for

the hospital stays and home confinement.

The ability to keep her job during this period

allowed Phyllis to maintain her employer-provided

health insurance. As a single mother, the continuation

of healthcare coverage was critical because her

children were under her medical plan.

Although Phyllis was fortunate to have a

supportive employer, many cancer survivors must rely

on the Americans with Disabilities Act (ADA) to

protect them from workplace discrimination. And in

the decision below, the Seventh Circuit has held that

people taking a multi-month leave of absence are

never covered by the ADA, regardless of whether

providing leave would actually burden the employer.

Unless this Court corrects this categorical error, the

ADA will no longer protect cancer survivors like

Phyllis from discrimination, despite Congress’s clear

mandate to do so.

SUMMARY OF ARGUMENT

I. Cancer affects a significant portion of the

population. Fifteen million Americans are cancer

survivors—those recently diagnosed, in treatment, or

living full lives after treatment. Over seven million are

working age. As cancer treatments improve, the

number of cancer survivors is expected to increase to

twenty million by 2026. Cancer survivors are not the

only people affected by the Seventh Circuit’s rule. For

example, many working-age Americans also suffer

from kidney disease and heart disease. They must

continue working after their treatment is over to

support themselves and their families.

The Seventh Circuit’s per se, no-multi-monthleave rule will harm cancer survivors, like petitioner

Marytza Golden, as well as people with other serious

illnesses, who likely can return to work but must first

undergo intensive treatment lasting more than a

month. If patients do not undergo curative treatments,

their cancer will worsen, generally leading to death.

The average length of absence from work for cancer

treatment is about five months. Surgeries for certain

kinds of heart and kidney disease have similar

recovery times. All of these people would be excluded

from ADA employment protections under the Seventh

Circuit’s rule.

Forty percent of cancer survivors return to work

within six months, and sixty-two percent return

within a year. Although people who receive

accommodations can successfully return to work, some

are prevented from returning to work because of

disability discrimination or other reasons. These

people depend on employment for health insurance

and income to pay for their treatment and may face

foreclosure and bankruptcy if they lose their jobs.

The Seventh Circuit’s per se rule exacerbates

these problems. Someone living in the Seventh

Circuit, like Marytza Golden, must risk termination to

receive life-saving treatment. When she takes leave,

she can be fired, regardless of the employer’s ability to

accommodate her. When she loses her job, she may

also lose her insurance and ability to pay her medical

bills.

On the other hand, when people living in the First

Circuit are diagnosed with cancer, they may take a

multi-month leave and keep their jobs unless granting

leave would unduly burden their employers. See

Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d

638, 648–49 (1st Cir. 2000). They can receive

treatment, maintain their health insurance, take the

time to recover, and then, in most cases, return to

work.

II. By excluding many cancer survivors from ADA

coverage, the Seventh Circuit’s rule is at odds with the

ADA’s text and history. When Congress first

considered the ADA, it heard testimony about

employment discrimination from cancer survivors and

interest groups and then indicated that cancer

survivors were covered by the Act. Further, the Equal

Employment Opportunity Commission’s post-passage

guidance documents indicate that cancer is a covered

ADA disability.

Courts nonetheless often excluded cancer

survivors from ADA coverage. Congress responded in

2008 with the ADA Amendments Act to clarify that the

ADA covers cancer survivors. Congress amended the

Act to expressly include people with impairments to

“normal cell growth,” 42 U.S.C. § 12102(2)(B), and

impairments “in remission,” id. § 12102(4)(D)—both

references to cancer. If the Seventh Circuit’s rule

remains in place, these important statutory changes

would have almost no practical effect. It therefore

should be rejected.

III. The Seventh Circuit’s rule arbitrarily

distinguishes between multi-month leaves of absence

and shorter leaves of absence, leading to anomalous

results. For example, under the Seventh Circuit’s rule,

someone needing one week off per month is covered by

the ADA no matter how many weeks she takes off. But

someone who needs a single seven-week leave of

absence is not. Also, the ADA would, in the Seventh

Circuit’s view, cover someone who chooses not to treat

her cancer—potentially out of fear of termination—but

not someone who chooses to combat it and needs more

than a month’s leave.

IV. The Seventh Circuit mistakenly relied on the

Family and Medical Leave Act in narrowing the ADA’s

protections, wrongly thinking that because the former

authorizes leave in some circumstances, the latter

generally does not. But the FMLA explicitly directs

courts not to do what the Seventh Circuit did: The

FMLA does not “modify or affect any Federal … law

prohibiting discrimination on the basis of …

disability.” 29 U.S.C. § 2651(a). Beyond that clear

command, this Court’s precedent gives full effect to

two statutes, regardless of overlap, so long as each

applies in situations where the other does not, as is

true with the ADA and the FMLA.

ARGUMENT

The Americans with Disabilities Act seeks to

eliminate discrimination against individuals with

disabilities in all walks of life, including in

employment. See 42 U.S.C. § 12101(a)(3), (b)(1). A

disability is an impairment or record of impairment

“that substantially limits one or more major life

activities,” such as eating or working. Id.

§ 12102(1)(A), (2)(A). Major life activities include the

“operation of a major bodily function,” such as

digestive function or, of particular importance here,

“normal cell growth.” Id. § 12102(2)(B). The Act

applies only to employees with disabilities who are

“qualified.” Id. § 12112(a). A “qualified individual” is

“an individual who, with or without reasonable

accommodation, can perform the essential functions”

of her job. Id. § 12111(8).

The ADA provides a non-exhaustive list of

reasonable

accommodations,

including

“job

restructuring” or “part-time or modified work

schedules.” 42 U.S.C. § 12111(9)(B). Under Equal

Employment Opportunity Commission guidance, a

reasonable accommodation may include “permitting

the use of accrued paid leave or providing additional

unpaid leave for necessary treatment.” 29 C.F.R. Part

1630, App. § 1630.2(o). An employer must make all

reasonable

accommodations

unless

“can

demonstrate that the accommodation would impose an

undue hardship.” 42 U.S.C. § 12112(b)(5)(A).

The Seventh Circuit’s rule challenged here

ignores this basic statutory structure—with its

emphasis on accommodating the needs of people with

disabilities while being sensitive to potential employer

burden. Instead, it erects a rigid per se rule that

anyone needing a temporary multi-month leave of

absence is never a “qualified individual with a

disability”—stopping the ADA analysis at its

threshold and thus failing to account for the ADA’s

flexible, case-by-case analysis into reasonable

accommodation and employer hardship. See, e.g., U.S.

Airways, Inc. v. Barnett, 535 U.S. 391, 405-06 (2002).

The Seventh Circuit reasoned that “[a]n

employee who needs long-term medical leave cannot

work and thus is not a ‘qualified individual’ under the

ADA.” Pet. App. 5a (citing Severson v. Heartland

Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017)).

Petitioner explains why that reasoning is wrong, Pet.

23–31, and we do not repeat that explanation here.

Instead, amici first describe the devastating

impact the Seventh Circuit’s rule would have on

cancer survivors and others suffering from serious

illnesses whose treatments commonly require more

than a month’s leave. We then explain why the

Seventh Circuit’s rule is at odds with the ADA’s text

and history. Although the ADA Amendments Act of

2008 extends coverage to cancer survivors, the

Seventh Circuit’s no-multi-month-leave rule would

effectively exclude a large proportion of these

individuals from any protections under the ADA,

rendering an important part of the Amendments Act

inconsequential. We conclude by addressing two other

points that support review of the Seventh Circuit’s

erroneous decision.

The Seventh Circuit’s per se rule would harm

many people battling cancer and other serious

diseases.

A. Cancer affects millions of working-age

Americans.

A significant portion of the population—forty

percent of men and thirty-eight percent of women—

will get cancer in their lifetimes. Cancer Facts &

Figures 2018, Am. Cancer Soc’y, 2 (2018).2 As of 2016,

more than 15.5 million living Americans had a history

of cancer. Id. at 1. Around forty percent are working

age, “between the ages of twenty and sixty-four.” Ann

C. Hodges, Working with Cancer: How the Law Can

Help Survivors Maintain Employment, 90 Wash. L.

Rev. 1039, 1044–45 (2015); see Cancer Treatment &

Survivorship Facts & Figures 2016-2017, Am. Cancer

Soc’y, 2 (2016) (over eight million cancer survivors

between twenty and sixty-nine years old).3

https://www.cancer.org/content/dam/cancer-org/research

/cancer-facts-and-statistics/annual-cancer-facts-andfigures/2018/cancer-facts-and-figures-2018.pdf

https://www.cancer.org/content/dam/cancer-org/research/

Cancer diagnoses are trending up, and the

number of survivors is expected to reach 20.3 million

by 2026. Cancer Treatment & Survivorship Facts &

Figures 2016–2017, supra, at 2. This year alone will

bring approximately 1.7 million new diagnoses.

Cancer Facts & Figures 2018, supra, at 1. Fortunately,

mortality rates are trending down, peaking in 1991

and declining more than twenty-six percent since. Id.

The mortality rate for breast cancer, responsible for

more cancer diagnoses than any other type, see id. at

4, has declined by thirty-nine percent since its 1989

peak, id. at 10. Mortality rates for kidney cancer,

colorectal cancer, leukemia, and prostate cancer are

also declining. Id. at 13, 15, 16, 22. As the number of

cancer survivors increases, naturally, the number of

cancer survivors who want to return to work also

increases.

B. Treatment for cancer and other serious

illnesses often takes more than a month.

These working-age cancer survivors often require

more than a month of continuous employment leave

for treatment and would lose the ADA’s protections

under the Seventh Circuit’s per se rule. The length

and impact of treatment varies significantly among

individuals, cancer type, and stage at diagnosis. This

Court’s recognition that, under the ADA, the

reasonableness of a workplace accommodation must

be determined case-by-case, see U.S. Airways, Inc. v.

cancer-facts-and-statistics/cancer-treatment-and-survivorshipfacts-and-figures/cancer-treatment-and-survivorship-facts-andfigures-2016-2017.pdf

Barnett, 535 U.S. 391, 405–06 (2002), is thus

especially salient for cancer survivors.

Treatment for cancer often includes surgery,

chemotherapy, and/or radiation. See Types of Cancer

Treatment, National Cancer Institute.4 The average

length of absence from work for cancer treatment is

151 days. See Anja Mehnert, Employment and workrelated issues in cancer survivors, 77 Critical Reviews

Oncology/Hematology

109,

109

(2011).

Chemotherapy often leaves the immune system

compromised and returning to work too soon could

lead to systemic infection and early death. See How

Chemotherapy Affects the Immune System,

Breastcancer.org.5

Breast and prostate cancer—among the most

common types—illustrate how timelines for treatment

can vary significantly even among people diagnosed

with the same cancer type. On average, prostate

cancer patients take twenty-seven days of leave—

about five work weeks—for treatment. See Mehnert,

supra, at 123–24. But time missed depends on both the

patient’s particular diagnosis and course of treatment.

For example, when the cancer is “locally staged,” that

is, present only in the prostate, patients miss an

average of 24.2 work days. Cathy J. Bradley, Kathleen

Oberst & Maryjean Schenk, Absenteeism from Work:

The Experience of Employed Breast and Prostate

Cancer Patients in the Months Following Diagnosis,

15 Psycho-Oncology 737, 743 (2006). But when

prostate cancer has spread to nearby areas, patients

https://www.cancer.gov/about-cancer/treatment/types.

http://www.breastcancer.org/tips/immune/cancer/chemo.

miss an average of 39.8 days. Id. Men who had

prostate surgery alone had “a median of 25 days

absent from work,” but men who had a combination of

surgery, hormone therapy, and/or radiation

treatments missed “a median of 30.5 days.” Id. at 744.

Early-stage breast cancer survivors need an

average of eleven months for treatment. Mehnert,

supra, at 123. But even within breast cancer

treatment, timelines vary considerably. One recent

study reported a mean duration of 349 medical-leave

days, while another reported a mean duration of 86

days, ranging from 11 to 929 days. Id. at 123. Another

study reported that “35% of breast cancer patients

were absent longer than one year.” Id. Even when

diagnosed at its earliest stages, the most common

breast cancer treatment is mastectomy. See Stage IA

& IB Treatment Options, Breastcancer.org;6 see also

Sequence of Treatments, Breastcancer.org.7 The

recovery period for mastectomy is around four weeks,

or longer if the patient has reconstructive surgery at

the same time. Mastectomy, Am. Cancer Soc’y.8

Mastectomy and reconstructive surgery do not,

however, end treatment for many women, as

petitioner Golden’s treatment shows. Pet. App. 2a-3a.

After

mastectomy,

women

may

receive

chemotherapy, radiation, and/or hormone therapy,

http://www.breastcancer.org/treatment/planning/cancer

_stage/stage_i.

http://www.breastcancer.org/treatment/planning/sequence.

https://www.cancer.org/cancer/breast-cancer/treatment

/surgery-for-breast-cancer/mastectomy.html.

extending treatment for months after surgery. See

Sequence of Treatments, supra. If this Court allows

the Seventh Circuit’s rule to stand, all of these cancer

survivors who need more than a month for treatment

will be excluded from the ADA’s protections at the

threshold, without any inquiry into whether

accommodating leave would unduly burden the

employer.

C. Denying ADA protection for people

requiring more than a month of leave would

harm people with other serious illnesses.

If not overturned, the Seventh Circuit’s per se

rule would also harm people with conditions other

than cancer. For example, people needing an organ

transplant would lose ADA coverage. In 2016, more

than 33,000 organ transplants were performed in the

United States. 2016 Annual Report, United Network

for Organ Sharing (UNOS).9 Another 115,000 people

are currently on wait lists. Data, UNOS.10 The number

of transplants is trending up, increasing by twenty

percent in the past five years. Id.

Over the past thirty years, kidney and liver

transplants have made up eighty percent of all

transplants. Data, supra. Transplants are needed

when the liver or kidney fails, generally from disease.

Chronic kidney disease affects approximately fourteen

percent of the population. Kidney Disease Statistics

for the United States, National Institute of Diabetic

https://unos.org/about/annual-report/2016-annual-report/.

https://unos.org/data/ (last visited Mar. 4, 2017).

and Digestive and Kidney Diseases.11 When kidney

disease reaches advanced stages, it leads to kidney

failure, which affects more than 661,000 Americans.

Id. Transplantees need “eight weeks or more after [a]

transplant” to return to work. Kidney Transplant,

National Kidney Foundation.12 Liver transplants have

similar recovery periods, with patients able to “go back

to work a few months after surgery.” Liver Transplant,

Mayo Clinic.13

The Seventh Circuit’s per se rule creates a

particularly harsh anomaly for people with kidney

failure. Treatment entails either non-curative care

through dialysis—artificial filtering of waste from the

blood—or a generally curative kidney transplant.

Under the Seventh Circuit’s rule, someone receiving

dialysis, which “lasts about four hours and is done

three times per week,” is a qualified individual with a

disability under the ADA because she needs only

intermittent (though persistent and substantial)

leave. Dialysis, National Kidney Foundation.14 But, as

noted, dialysis does not cure kidney disease; the

“[a]verage life expectancy on dialysis is 5-10 years.” Id.

A successful kidney transplant, on the other

hand, “may allow [the patient] to live the kind of life

you were living before you got kidney disease.” Kidney

https://www.niddk.nih.gov/health-information/health-st

atistics/kidney-disease.

https://www.kidney.org/atoz/content/kidney-transplant.

https://www.mayoclinic.org/tests-procedures/liver-trans

plant/about/pac-20384842.

https://www.kidney.org/atoz/content/dialysisinfo.

Transplant,

supra. Survival rates for kidney

transplant are very high—between ninety-five and

ninety-eight percent. Kidney Disease Statistics for the

United States, supra. Thus, the Seventh Circuit’s rule

protects people who choose a disruptive treatment

that will only delay death, but does not protect people

who receive treatment that will likely cure their

disability. In the Seventh Circuit, then, patients could

have a perverse incentive to avoid the best treatment

to keep their employment.

The Seventh Circuit’s per se rule would also harm

people with heart disease. About ninety-two million

Americans have some kind of heart disease. Emelia J.

Benjamin et al., Heart Disease and Stroke Statistics –

2017 Update A Report from the Am. Heart Ass’n, 137

Circulation e146, e349 (2017). Though not all require

intensive medical treatment, many must undergo

surgery to treat their heart conditions. In 2010, 7.5

million Americans had inpatient cardiovascular

surgery, id. at e585, the most common of which is

coronary artery bypass surgery, Coronary Artery

Bypass Grafting, National Heart, Lung, and Blood

Institute.15 That same year, 397,000 Americans

underwent this surgery. Benjamin, supra, at e585.

These patients have an excellent outlook, as the

surgery completely relieves symptoms in most

patients for ten to fifteen years and lowers the risk of

future heart attacks. Coronary Artery Bypass

Grafting, supra. But they commonly need six to twelve

weeks or more before returning to work. Id.

https://www.nhlbi.nih.gov/health-topics/coronary-arterybypass-grafting.

Another 106,000 Americans had heart valve

surgery in 2010. Benjamin, supra, at e585. Like

cancer, “[v]alve disease is not a condition that should

be ignored when treatment is recommended.” Options

and Considerations for Heart Valve Surgery, Am.

Heart Ass’n.16 When the condition reaches that point,

“the average survival rate without surgical

intervention is only 50 percent after two years and

only 20 percent after five years.” Id. As with bypass

patients, heart valve surgery survivors “enjoy a return

to good health and add many years to their life.” Id.

This surgery’s “normal recovery time … is usually four

to eight weeks.” Heart Valve Surgery Recovery and

Follow Up, Am. Heart Ass’n.17 With that recovery

timeline, many patients would be categorically

excluded from the ADA’s protections under the

Seventh Circuit’s no-multi-month-leave rule, even

when the leave required would not impose an undue

hardship on the employer.

D. Lack of workplace accommodations can lead

to devastating medical and financial

hardship.

Although many cancer survivors require multimonth treatments, most are able to return to work.

The majority—sixty-two percent—return to work

within a year of diagnosis, and at least forty percent

return to work within six months. See Anja Mehnert,

http://www.heart.org/HEARTORG/Conditions/More/Hea

rtValveProblemsandDisease/Options-and-Considerations-forHeart-Valve-Surgery_UCM_450787_Article.jsp#.WnOJ1qinE2w.

http://www.heart.org/HEARTORG/Conditions/More/Hea

rtValveProblemsandDisease/Heart-Valve-Surgery-Recoveryand-Follow-Up_UCM_450700_Article.jsp#.WnOLw6inE2w.

Employment and work-related issues in cancer

survivors, 77 Critical Reviews in Oncology/

Hematology 109, 122 (2011). Once back on the job,

cancer survivors are valuable employees, often

working more hours and receiving higher pay than

control groups. Ann C. Hodges, Working with Cancer:

How the Law Can Help Survivors Maintain

Employment, 90 Wash. L. Rev. 1039, 1052–53 (2015).

But under the Seventh Circuit’s rule, these

individuals may not have a job to return to after

treatment.

When employers do not accommodate serious

illness, survivors often face financial ruin because of

loss of health insurance and income. The Seventh

Circuit’s per se rule exacerbates this problem by

removing protection from a significant segment of the

population that needs time off for treatment.

Requiring an individualized, hardship-based analysis

of leave requests would ameliorate this problem by

protecting employees from job loss when the employer

has the resources to accommodate them.

A 2007 study found that sixty-two percent of

bankruptcies were related to medical costs, because

individuals had “lost significant income due to illness

or mortgaged a home to pay medical bills.” David U.

Himmelstein et al., Medical Bankruptcy in the United

States, 2007: Results of a National Study, 122 Am. J.

Med. 741, 741 (2009). Nearly forty percent identified

illness-related loss of income as the cause of their

bankruptcy. See id. at 743. Losing health insurance is

another major problem for those who are not

accommodated. “Because health insurance is tied to

employment for many in the United States, the lack of

employment may lead to inability to pay for treatment

and necessary follow-up.” Hodges, supra, at 1041. A

gap in insurance coverage is a predictor of medical

bankruptcy. Himmelstein, supra, at 744. Many

families “had private coverage but lost it when they

became too sick to work.” Id. For those who lost

coverage, “the family’s out-of-pocket expenses

averaged $22,568.” Id. Ninety-two percent of people in

medical bankruptcy reported that “high medical bills

directly contributed to their bankruptcy.” Id. Within

medical bankruptcies, 24.4 percent reported being

fired from their jobs, and 37.9 percent reported losing

or quitting a job due to the illness. Id. The Seventh

Circuit’s rule worsens this problem, as many people

will lose the ADA’s protections during periods of

critical treatment.

II.

The Seventh Circuit’s per se rule excludes a

significant portion of cancer survivors, at odds

with the ADA’s text and history.

1. When Congress passed the ADA, it intended to

protect cancer survivors. Some courts nonetheless

held that cancer survivors were not covered. Congress

then responded with the ADA Amendments Act, which

clarified in express terms that cancer survivors are

entitled to the Act’s employment protections, subject

to its reasonable-accommodation, undue-hardship

framework. By excluding most cancer survivors from

ADA coverage, the Seventh Circuit’s rule cannot be

squared with this history and should be overturned.

Before the ADA’s 1990 passage, hearings held in

1985 and 1987 alerted Congress to workplace

discrimination against cancer survivors. See Hearing

on Discrimination Against Cancer Victims and the

Handicapped: Hearing before the Subcomm. on Emp’t

Opportunities of the H. Comm. on Educ. and Labor,

100th Cong. (1987).18 Congress heard testimony that,

based on “conservative” estimates, at least one million

cancer

survivors

had

suffered

employment

discrimination. Hearing on Discrimination Against

Cancer Victims and the Handicapped: Hearing before

the Subcomm. on Emp’t Opportunities of the H.

Comm. on Educ. and Labor, 100th Cong. 41 (1987)

(statement of Barbara Hoffman, National Coalition for

Cancer Survivorship). Employers discriminated

against cancer survivors by firing them, denying them

promotions, or throwing them off company insurance

policies. See Emp’t Discrimination Against Cancer

Victims and the Handicapped: Hearing on H.R. 370

and H.R. 1294 before the Subcomm. on Emp’t

Opportunities of the H. Comm. on Educ. and Labor,

99th Cong. 10, 19 (1985) (statements of Rep. Mario

Biaggi, New York, and Robert J. McKenna, President,

American Cancer Society). A few years later, when

considering the ADA, Congress again heard testimony

about cancer discrimination.19

See also Emp’t Discrimination Against Cancer Victims

and the Handicapped: Hearing on H.R. 370 and H.R. 1294 Before

the Subcomm. on Emp’t Opportunities of the H. Comm. on Educ.

and Labor, 99th Cong. (1985).

See Americans with Disabilities Act of 1989: Hearings on

S. 933 Before the Subcomm. on the Handicapped of the S. Comm.

on Labor and Human Resources, 101th Cong. 259-62 (1989)

(statement of Mary DeSapio, cancer survivor) (discussing her

own firing after returning to work following treatment for

cancer); id. at 252 (statement of Justin Dart, Chairperson, Task

Force on the Rights and Empowerment of Americans with

Disabilities) (naming cancer as a disability that leads to

employment discrimination); id. at 313–14, 333 (statement of

Congress sought to eradicate this discrimination.

As noted, the ADA’s drafters intended to cover cancer

from the beginning, with both chambers agreeing that

cancer was a covered disability. See H.R. Rep. No. 101485, pt. 2, at 51 (1990); S. Rep. No. 101-116, at 22

(1989).20 Then-U.S. Attorney General Richard

Thornburgh testified that he believed that cancer was

a disability under the proposed legislation. See

Americans with Disabilities Act of 1989: Hearing on

H.R. 2273 Before the Subcomm. on Civil and

Constitutional Rights of the H. Comm. on the

Judiciary, 101st Cong. 230 (1989) (statement of

Richard Thornburgh).

After the ADA’s passage, early EEOC guidance

documents,

intended

supplement

federal

regulation, make many references to cancer as a

covered disability. An early update to the EEOC’s

Compliance Manual stated that “[m]ost forms of …

cancer” substantially limit a major life activity. U.S.

Equal Emp. Opportunity Comm’n, EEOC-M1A, A

Technical Assistance Manual on the Emp’t Provisions

(Title I) of the Americans with Disabilities Act, App. E

§ 902.34 (1995); see also U.S. Equal Emp. Opportunity

Arlene B. Mayerson, Disability Rights Education and Defense

Fund) (presenting results of studies documenting discrimination

against cancer survivors); id. at 383–89 (statement of Barbara

Hoffman, Vice President, National Coalition for Cancer

Survivorship) (urging Congress to pass the ADA because it would

protect cancer survivors from discrimination).

See also Americans with Disabilities Act of 1988: Joint

Hearing on S. 2345 Before the Subcomm. on the Handicapped of

the S. Comm. on Labor and Human Resources and the Subcomm.

on Select Educ. of the H. Comm. on Educ. and Labor, 100th Cong.

13 (1988) (statement of Rep. Tony Coelho).

Comm’n, EEOC-M1A, A Technical Assistance Manual

on the Employment Provisions (Title I) of the

Americans with Disabilities Act at II-8 (1992) (stating

that “people who have a history of a disability” include

“people with a history of cancer”). And subsequent

EEOC enforcement guidance explained that the ADA

covered people needing leave because they suffered

side effects from chemotherapy. See U.S. Equal Emp.

Opportunity Comm’n, Enforcement Guidance:

Reasonable Accommodation and Undue Hardship

Under the Americans with Disabilities Act (Mar. 1,

1999), 1999 WL 33305876, at *26.

2. Courts nonetheless excluded workers from

coverage by holding that cancer was not a disability

under the ADA. Specifically, courts held that if a

cancer survivor could work, she did not have “a

disability” that affected a major life activity, such as

working and, thus, did not reach the question whether

the needs of cancer survivors could be reasonably

accommodated. See, e.g., Ellison v. Software

Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996); Nave v.

Wooldridge Constr., No. 96-2891, 1997 WL 379174

(E.D. Pa. June 30, 1997); see also Barbara Hoffman,

Between a Disability and a Hard Place: The Cancer

Survivors’ Catch-22 of Proving Disability Status

Under the Americans with Disabilities Act, 59 Md. L.

Rev. 352, 376–94 (2000) (collecting cases). As a result,

even after Congress passed the ADA, cancer survivors

were still at risk of suffering discrimination because of

their cancer.

3. Congress responded in 2008 with the ADA

Amendments Act. The Amendments Act’s text

clarified that the ADA covers cancer survivors by

changing the definition of “disability” in two ways.

First, it added a list of “major life activities” that, when

substantially limited, make a person disabled. ADA

Amendments Act of 2008, Pub. L. No. 110-325, § 4(a),

122 Stat. 3553 (2008), codified at 42 U.S.C. § 12101(2).

Among these major life activities, Congress included

“normal cell growth,” 42 U.S.C. § 12102(2)(B)—the

impairment of which is the hallmark of cancer, see

What is Cancer?, Am. Cancer Soc’y.21 Second,

Congress directed that “[a]n impairment that is

episodic or in remission is a disability if it would

substantially limit a major life activity when active.”

ADA Amendments Act of 2008, Pub. L. No. 110-325, §

4(a), 122 Stat. 3553 (2008), codified at 42 U.S.C §

12102(4)(D). By indicating that a “major life activity”

is “normal cell growth” and that an impairment “in

remission” can be a disability, Congress signaled quite

clearly that cancer is a covered disability.

In the end, if left standing, the Seventh Circuit’s

per se rule would exclude many cancer survivors from

ADA coverage, as the data reviewed above (at 9-15)

shows. Courts excluded cancer survivors from ADA

coverage once before, and Congress responded with a

clear message in the Amendments Act: Cancer is a

disability. But the Seventh Circuit did not listen.

Instead, it ascribed to Congress an intent to provide

cancer survivors formal ADA coverage but deny them

multi-month leave, the one accommodation they need

most to make their coverage a reality. That cannot be

right.

https://www.cancer.org/cancer/cancer-basics/what-is-can

cer.html.

III.

The Seventh Circuit’s per se rule creates

legal and practical anomalies.

The Seventh Circuit’s rule challenged here is

quite simple: Anyone who needs a multi-month leave

is not a “qualified individual with a disability” and

thus never protected by the ADA. The Seventh Circuit

gives no good reason for choosing multi-month leaves

of absence instead of leaves of one week, three weeks,

three months, or a year. And there is none: The

definition of a “qualified individual with a disability”

does not impose any work-time requirements. See 42

U.S.C. § 12111(8) (defining a “qualified individual

with a disability” as “an individual who, with or

without reasonable accommodation, can perform the

essential functions of” her job).

But the ADA is not silent on leave. Rather than

address leave in the “qualified individual with a

disability” definition, as the Seventh Circuit has done,

the ADA views leave as a question of “reasonable

accommodation.” As noted earlier, the ADA expressly

identifies “part-time or modified work schedules” as a

potential reasonable accommodation, 42 U.S.C.

§ 12111(9)(B), and the EEOC says that “accrued paid

leave or providing additional unpaid leave for

necessary treatment” can be a reasonable

accommodation, 29 C.F.R. Part 1630, App. § 1630.2(o).

The Seventh Circuit acknowledged that “a short

leave of absence—say, a couple of days or even a couple

of weeks” may be a reasonable accommodation.

Severson v. Heartland Woodcraft, Inc., 872 F.3d 476,

481 (7th Cir. 2017). But that puts the Seventh

Circuit’s reasoning at war with itself. The basis of the

Seventh Circuit’s rule is that an individual who needs

a multi-month leave of absence is not a “qualified

individual” because a “leave of absence does not give a

disabled individual the means to work; it excuses his

not working.” Id. There is no reason why this logic

should not apply with equal force to someone who

needs “a couple of weeks” leave and someone who

needs multiple months.

Because the Seventh Circuit does not apply the

same reasoning to all leaves of absence, its rule leads

to anomalous results, undercutting the logic of any per

se rule. For instance, an employee diagnosed with

breast cancer may require surgery with a eight-week

recovery, but then be able to return to work with no

impairments. Another employee may have an ongoing

condition that forces her to take a week off every

month for the duration of her employment. Under the

Seventh Circuit’s rule, the first employee is always

considered legally unable to perform the essential

functions of the job and thus categorically not

disabled, but the second employee—who actually

misses more work—is given the benefit of an

individualized factual determination of whether her

schedule is reasonable or imposes an undue hardship

on the employer. See Pet. App. 7a–8a (Rovner, J.,

concurring). See also supra 13–14 (discussing similar

anomaly in legal outcomes for patients undergoing

kidney transplant compared to dialysis).

Or, take someone whose cancer is “in remission,”

whom the ADA presumptively covers. 42 U.S.C

§ 12102(4)(D). If her cancer went into remission

because she took a multi-month leave for treatment,

she would have been covered under the ADA when she

was diagnosed, not covered during her multi-month

treatment, and then suddenly covered again when her

cancer went into remission. If, however, she chose not

to treat her cancer, either fearing termination or

because her cancer was untreatable, she would have

maintained her ADA coverage throughout. Put

differently, the ADA covers someone with untreatable

cancer and someone whose cancer is in remission, but

not, according to the Seventh Circuit, someone who is

in multi-month treatment fighting for her life.

IV.

The Seventh Circuit mistakenly relied on the

FMLA to narrow the ADA’s coverage.

In defending its per se rule and rejecting a

flexible, accommodation-based approach to leave, the

Seventh Circuit has noted that “medical leave is the

domain of the” Family and Medical Leave Act (FMLA).

Severson v. Heartland Woodcraft, Inc., 872 F.3d 476,

481 (7th Cir. 2017); see 29 U.S.C. § 2612(a)(1)

(allowing “12 workweeks of leave during any 12-month

period” in specified circumstances). According to the

Seventh Circuit, a contrary rule would transform the

ADA into “an open-ended extension of the FMLA.”

Severson, 872 F.3d at 482. By relying on the FMLA to

justify its narrowing of the ADA, the Seventh Circuit

failed to account for the FMLA’s text and the different

purposes of each statute.

First, the FMLA’s text precludes the Seventh

Circuit’s reasoning: “Nothing in this Act or any

amendment made by this Act shall be construed to

modify or affect any Federal or State law prohibiting

discrimination on the basis of … disability.” 29 U.S.C.

§ 2651(a). This language refers to the ADA, enacted

three years before the FMLA.

Beyond this direct, congressional denunciation of

the Seventh Circuit’s approach, overlapping statutes,

this Court has observed, “do not pose an either-or

proposition.” Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253 (1992). “Redundancies across statutes are not

unusual,” id. at 253, and, so, if giving effect to

overlapping statutes “would not render one or the

other wholly superfluous,” “a court must give effect to

both.” Id. Here, each statute applies in situations

where the other does not and viewing extended leave

as a reasonable accommodation under the ADA would

not render the FMLA superfluous.

In particular, the FMLA’s primary (though not

only) purpose is to allow employees to take leave to

care for others: a sick family member or a child after

birth or adoption. See 29 U.S.C. §§ 2612(a)(1), 2601(b).

The ADA’s primary purpose, on the other hand, is to

protect the employee’s ability to obtain or maintain

her own employment, not her interest in taking care of

others. The ADA thus seeks to eradicate

discrimination on the basis of disability by requiring

employers to provide employees with a wide range of

“reasonable accommodation[s],” only one of which is

leave. See, e.g., 42 U.S.C. § 12111(9) (non-exclusive list

of reasonable accommodations). The FMLA provides

only leave and then only in specified circumstances.

See 29 U.S.C. § 2612(a)(1). But when it does provide

leave, it does so absolutely, without regard to the

hardship leave might impose on the employer. In sum,

the Seventh Circuit erred by relying on the FMLA to

narrow the ADA’s reach.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Brian Wolfman

Counsel of Record

GEORGETOWN LAW

APPELLATE COURTS

IMMERSION CLINIC

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 661-6582

wolfmanb@georgetown.edu

Counsel for Amici Curiae

March 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.