Americans With Disabilities Act Covers Type 2 Diabetic

An insulin-dependent type 2 diabetic, whose condition is so severe as to substantially limit his eating as compared with the general population, is covered by the Americans With Disabilities Act (ADA) the United States Court of Appeals for the Ninth Circuit has ruled in Rohr v. Salt River Agricultural District, No. 06-16527 (February 13, 2009). 

Larry Rohr was diagnosed with in 2000 with insulin-dependent type 2 diabetes. The diagnosis of Rohr’s diabetes inaugurated a lifetime regimen of insulin injections, medicine, blood tests, and a strict diet; the condition caused chronic high blood pressure, deteriorating vision, occasional loss of feeling in his hands and feet and made him quicker to tire. His high blood pressure also prevented him from passing an annual respirator certification, which was important to his job. As time went on, these symptoms became more severe. Eventually, Rohr’s condition led to a number of permanent work restrictions:

• no rotating shift work
• no more than 9 hour workday 
• limits on prolonged work in hot areas with little ventilation 
• no heavy exertional activities 
• no work from unprotected heights or unprotected climbing  
• carry with him at all times a sugar supply such as a sugar tablet 
• no out-of-town travel to avoid any dietary disruption   

Rohr’s employer became dissatisfied with these restrictions, determined that he could not perform the essential functions of his job and presented him with three options: (1) seek another position with the company; (2) apply for disability benefits; or, (3) take early retirement. Rohr opted to apply for disability benefits and filed a charge of discrimination with the Equal Employment Opportunity Commission. 

Diabetes is a “physical impairment” because it affects the “major life activity” of eating the court first ruled. The question was whether it “substantially limited” Rohr’s eating. This it did for Rohr the court ruled based on the following:

• he cannot eat large meals or skip meals and must eat a snack every few hours 
• he must schedule each day’s blood tests, medications and food intake 
• he sometimes becomes dizzy, symptoms that subside only when he quickly eats something 
• a deviation from his diet regimen for more than a meal or two causes his blood sugar level to rise, aggravating his condition 
• his personal and recreational travel was limited by his need to avoid disruption to his diet  

These factors caused by Rohr’s diabetes were so different compared to the general population as to establish that his diabetes substantially limited his eating. 

Rohr’s diabetes was severe enough to “substantially limit” eating, a “major life activity.” The Court cautioned and noted other cases ruling that not all diabetes causes such disruptions and therefore rises to the level of a “disability” within the meaning of the ADA. The assessment of a “disability” the court observed is an “individualized determination.” 

Robert L. Abell

www.RobertAbellLaw.com 

Cancer Survivor Protected from Disability Discrimination

A breast cancer survivor qualifies for protection by the Americans With Disabilities Act (ADA), the D.C. Circuit held in Adams v. Rice (No. 07-5101).
The protection arose, the court concluded, because the illness and
treatment had caused an enduring impairment to the plaintiff’s “major
life activity” of sexual relations.

The plaintiff, Adams, earned a position with the United States Foreign
Service, one that required a medical clearance.  Her medical clearance
was revoked when she later reported a diagnosis of stage-one breast
cancer.  She underwent a successful treatment program, which included
reconstructive surgery.  Despite being cancer-free, her medical
clearance was not reinstated and her job was lost.  Adams claimed this
violated her rights under anti-disability discrimination laws.

The court ruled that Adams had established that, despite being
cancer-free, she continued to suffer a disability because of an ongoing
impairment to her ability to engage in sexual relations.  To reach that
conclusion the court had to first decide whether engaging in sexual
relations qualified as a “major life activity.”  Based on statutory
text, Supreme Court precedent and applying a “hefty dose of common
sense” the court concluded that “engaging in sexual relations qualifies
as a major life activity.” 

While this case is testament first to Adams’s bravery and the “common
sense” of the court majority is to be acknowledged, it also serves as
an illustration of how Supreme Court and other court rulings have so
limited the Americans With Disabilities Act that its protections are
ever difficult to define.  Adams lost her job with the State Department
because it regarded her as a liability (or at least a potential
liability) since she was a breast cancer survivor.  That she qualified
for protection from disability discrimination in her employment as a
Foreign Service officer based only on an ongoing impairment to her
ability to engage in sexual relations indicates that Congress should
act and restore a healthy dose of common sense to the protections
afforded by the Americans With Disabilities Act by effectively
repealing a number of misguided Supreme Court decisions.

Robert L. Abell
www.RobertAbellLaw.com

Fired Because of A Sick Family Member: Protection Against “Association Discrimination”

One of the most important benefits most people get from their jobs is health care insurance for themselves and their families.  This health insurance becomes of vital importance when a family member falls into a prolonged illness.  From the employer’s perspective, especially where the employer is self-insured, a prolonged illness for an employee’s family member becomes a cost liability which can create an incentive for the employer to rid itself of both the employee and their sick family member.  Where this occurs the Americans With Disabilities Act (ADA) may provide some protection for the employee and their family.

The ADA prohibits discrimination against an employee “because of the known disability of an individual with whom the [employee] is known to have a relationship or association.”  This is commonly referred to as protection against association discrimination.  Two recent cases, one decided by the United States Court of Appeals for the Seventh Circuit, DeWitt v. Proctor Hospital, and Trujillo v. Pacificorp decided by the United States Court of Appeals for the Tenth Circuit illustrate this protection and in both cases the employer was self-employed.

In Dewitt, the employee’s husband became ill with prostrate cancer.  The employer paid medical costs up to $250,000 per year before a “stop loss” policy kicked in.  Each quarter the employer had compiled a roster of all employees whose claims had exceeded $25,000.  When the bills for the employee’s husband’s treatment began mounting she was confronted about them and asked what type of treatment he was receiving and whether less expensive alternatives had been considered.  The hospital became concerned about the costs, its own overall financial situation and resolved to be “creative” in cutting costs.  And so the employee was fired. 

The Court ruled that a jury should consider the employee’s claim of “association discrimination” in violation of the ADA.  It noted that the firing followed close in time expressions of concern to the employee regarding the costs of her husband’s medical care and the employer’s resolution to be “creative” in cutting costs.  Therefore, the court ruled that a reasonable juor could conclude the employer was concerned that the husband’s illness could linger for years and at great cost to the employer and so therefore the employee was fired in violation of the ADA. 

Trujillo v. Pacificorp presents a similar sad story.  The Trujillos, husband and wife, both worked for Pacificorp and had for many years, he for 25 and she for 8 years.  Their son developed a brain tumor that metasized into his spine.  Aggressive and costly (in excess of $62,000) experimental chemotherapy was undertaken but was unsuccessful.  Pacificorp designated claims exceeding $50,000 as high-dollar and healthcare costs for each employee were factored into the plant’s budget line item for labor costs. 

Eleven days after the Trujillos’ son suffered a relapse and began the final chemotherapy regiment the employer began an investigation into alleged time theft by the Trujillos.  The evidence showed that the company did not use a time clock, that supervisors usually approved employees’ time sheets based on their observations during the work day, that time sheets were somtimes filled out in advance, that supervisors sometimes allowed employees to leave early but to record a full shift, and that employees frequently used a “piggyback” procedure to pass through a security gate in which one employee would use his security card to get the gate to open and other employees would walk in as well.  Nonetheless, Pacificorp accused both of the Trujillos with time theft and terminated them.

The court ruled that evidence that Pacificorp had general concerns about the rising cost of healthcare, that the claims for the Trujillos’ child were considered “high dollar,” that there was only one other “high dollar” claim during the relevant time frame on which the employer kept close tabs, that insurance costs were factored into the budget line item for labor costs of each employee, and that the investigation regarding the Trujillos’ alleged time theft was one-sided and incomplete was enough for a jury to find in their favor at trial. 

The DeWitt and Trujillo cases also illustrate general problems that arise from the United States’ system of employer-based healthcare insurance.  It seems reasonable for employers to be concerned about rising healthcare costs and the effects those costs have on their ability to compete in their business fields.  And yet it is horribly unfair to fire an employee because they have an ill family member that is generating substantial insurance costs for the employer.  The current system and the ADA mandate that cost be borne solely by the employer who is unlucky enough to employ an individual unlucky to have a family member suffering from a serious illness.  One might reasonably suggest that a single-payer system in which the costs were borne more widely would be more equitable and fair to both the employer and the employee.  It may also eliminate the impulse for “association discrimination” behind both of these cases. 

Robert L. Abell
www.robertabelllaw.com