A federal appeals court has overturned a lower court and reinstated discrimination charges filed by a daycare worker who was terminated after she took time off for a prophylactic double mastectomy.

Sherryl Darby, who had a family history of cancer and a genetic mutation known as BRCA1, filed suit against Springboro, Ohio-based Childvine where she had worked as an administrative assistant, charging it with violating the Americans with Disabilities Act and Ohio law for firing her soon after she had the procedure,  according to Tuesday’s ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Sherryl Darby v. Childvine, Inc.; Tyler Mayhugh; Samantha Blizzard.

Shortly after she began work, Ms. Darby asked for time off for a double mastectomy later that month.

The supervisor “balked at the idea” and asked her to delay her surgery until her 90-day probationary period ended. Ms. Darby agreed to move the procedure the day after her probationary period expired.

She was allegedly “harassed” by the supervisor and Childvine’s co-owner about the length of her leave request. When she returned to work, she was told Childvine had already sent her a letter informing her of her termination. 

The letter was effective the last day of her probationary period and reasons listed for her termination included “unpleasant” attitude, dress code violations and “being unable to work,” the ruling said.

Ms. Darby filed suit against the daycare facility in U.S. District Court in Cincinnati, which granted Childvine’s motion to dismiss the case. 
The ruling was overturned by a unanimous three-judge appeals court panel.

“The key point of contention between the parties is…whether Darby’s genetic mutation constitutes a disability under the ADA. Darby argues her condition so qualifies because it is a ‘physical or mental impairment that substantially limits one or more (of her) major life activities,’” said the ruling, in citing the ADA. 

It is “at least plausible, at this stage, that Darby’s gene mutation and abnormal cell growth, though not cancerous, qualify as a disability under the ADA,” the ruling said.  Her claims “are entitled to further consideration through discovery.”

While it is not deciding whether Ms. Darby’s condition “in fact falls under the ADA’s definition of a disability,” her “factual allegations are sufficient to survive a motion to dismiss,” said the ruling, in remanding the case for further proceedings. 

Attorneys in the case could not be reached for comment.