Court: Kidney Function an ADA 'Major Life Activity'

October 7, 2004 ( - A former Wal-Mart employee who lost her job after suffering kidney failure can sue the giant retailer because "cleansing the blood and processing bodily waste" is a "major life activity" under federal anti-discrimination law, an appeals court ruled.

>The US 3rd Circuit Court of Appeals  ruled that a lower court mistakenly threw out the suit on the grounds that impairment of an organ does not, in itself, constitute a limitation on a life activity under the federal Americans with Disabilities Act (ADA), the Legal Intelligencer reported.

“We disagree with the district court’s conclusion that impaired elimination of waste and blood cleansing are nothing more than characteristics of kidney failure,” wrote Circuit Judge Michael Chertoff in the ruling. The court continued: “”the fact that the effect of kidney failure is felt on an internal autonomous organic activity is … not incompatible with a finding of substantial limitation of a major life activity.”

>Chertoff found that the worker never alleged that her disease limited her in the life activity of “kidney function,” but instead had claimed that she was limited in the major life activities of cleansing her blood and processing waste.

>A major life activity need not involve “externally visible or volitional behavior,” Chertoff found. Courts have held that breathing is a major life activity even though it is “largely involuntary,” Chertoff noted, and the 3rd Circuit has held that thinking also qualifies even though it is “largely internal and invisible.”

>Chertoff also rejected Wal-Mart’s argument that even if cleansing blood was a major life activity, the employee’s dialysis treatments fully mitigated the impact of her kidney disease, so that there was no longer a substantial limitation in performing that activity.

>By reversing the lower court, the appeals judges effectively revived a lawsuit filed by Cathy Fiscus, a former employee of the Wal-Mart subsidiary Sam’s Warehouse Club store in Pittsburgh. According to court papers, Fiscus had worked for Sam’s Club for nearly a decade when she was diagnosed with kidney failure in November 1995.

>Over the next few years, her condition deteriorated, and in July 1998, she was diagnosed as having end-stage renal disease, or near-total permanent kidney failure.

>When Fiscus first began in-hospital dialysis treatments three times per week, she continued to work her overnight shift. Due to medical complications, Fiscus later began administering the dialysis process herself every four to six hours. At first she was allowed to perform the dialysis at her work premises.

>But after a fall left her unable to continue working in the store’s bakery department, Fiscus claims she was offered a job as a “greeter,” but was told she would no longer be granted the accommodation of performing the dialysis in the store. Instead, the suit says, the store manager advised Fiscus to take disability leave, which she did.

>In September 1999, Fiscus underwent a kidney transplant and was unable to return to work until March 30, 2000.   On March 15, 2000, Wal-Mart fired Fiscus because she had been unable to return to work within a year.

>US District Judge Gary Lancaster of the US District Court for the Western District of Pennsylvania sided with Wal-Mart, finding that while end-stage renal disease is a “physical impairment,” the case failed because cleansing the blood and processing bodily waste do not constitute a “major life activity” within the meaning of the ADA.