Monday, September 15, 2008

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Diabetes and the Americans with Disabilities Act

By nearly all accounts, the intent of Congress when it passed the Americans with Disabilities Act (the ADA) and when it was signed into law by the first President Bush in 1990, was to have the ADA apply to discrimination in the workplace against folks with diabetes, and other people with medical conditions that are treatable.

However, several Supreme Court decisions have taken away nearly all ADA protection for people with diabetes and other manageable disabilities. It looks like Congress is about to send to President Bush a veto-proof bill that will override these Supreme Court decisions.

One of the Supreme Court cases which limited the application of the ADA is Sutton v. United Airlines (1999) where several severely myopic job applicants claimed that the United Airlines vision requirements discriminated against them under the ADA. As part of their claim, they proved that their vision could be corrected to perfect vision and, hence, did not interfere with their ability to do the job of airline pilot. By refusing to hire them per the United Airlines vision policy, they argued, they were being discriminated against in violation of the ADA.

The Supreme Court flipped this on its head, and relying on the fact that they had perfect vision once the disability was corrected found that they were not covered by the ADA. The Court explained:

"[W]e hold that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses."

So what does this have to do with diabetes?

Relying on the Sutton case, in 2004 the federal circuit court in Nebraska threw out a case brought by an insulin-dependent diabetic against Wal-Mart after he was fired for needing to break up his lunch period into 10-minute breaks so that he could maintain his insulin regiment. When a new supervisor came on board he announced his intention to enforce Wal-Mart's rules which prohibited this arrangement and the worker was ultimately fired. He brought suit under the ADA.

The Court in this case (Orr v. Wal-Mart Stores, Inc. (8th Cir. 2002)), threw the case out, relying on Sutton. The Court stated:

"The Supreme Court in Sutton expressly ruled that '[a] ‘disability’ exists only where an impairment ‘substantially limits' a major life activity, not where it ‘ might,’ ‘ could,’ or ‘ would ’ be substantially limiting if mitigating measures were not taken.' Sutton, 527 U.S. at 482, 119 S.Ct. 2139 (emphasis added). Therefore, neither the district court nor we can consider what would or could occur if Orr failed to treat his diabetes or how his diabetes might develop in the future. Rather, Sutton requires that we examine Orr's present condition with reference to the mitigating measures taken, i.e., insulin injections and diet, and the actual consequences which followed. See id."

The 8th Circuit never got to the question of Wal-Mart's refusal to accommodate Mr. Orr's disability because they determined he was not covered by the ADA. The matter was appealed to the Supreme Court by Mr. Orr, and the Supreme Court refused to hear the case.

All of this may be on the brink of changing, and returning the law to its intended coverage. On September 11, 2008, the Senate passed a bill to expand workplace protections for people with disabilities. The bill’s chief sponsor, Sen. Tom Harkin, D-Iowa, explained the purpose of the bill:

“The erosions of rights created by these court cases have created a bizarre Catch 22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected.”

The legislation is similar to a bill passed in June by the House of Representatives. Minor differences between the two bills are expected to be ironed out quickly so a final version can be sent to President Bush.

The bill, S. 3406, provides that a person may be disabled even though measures such as medication, prosthetics and assistive technology are used to mitigate the disability.

Stay tuned.