by Michael Fox
Branham, an IRS employee with a long history of diabetes, desired a promotion to criminal investigator. After being tentatively selected, pending a physical examination, he was disqualified because of his diabetes. The trial court noted the double bind that bedevils a disability plaintiff:
On the one hand, in order to qualify as disabled under the Rehabilitation Act, the Plaintiff emphasizes those portions of the record, . . . which tend to show the gravity of his condition; but to demonstrate that he is nonetheless medically qualified and does not present a threat of harm, he does a 180-degree turn and points to . . . his diabetes as being under excellent control.
Branham was unable to maneuver those tricky waters before the trial court and summary judgment was granted in favor of the government.
But on appeal --a different result. The Court reiterated the importance of individual determination about disability, diabetic status alone is not enough. But here the focus was whether the major life activity of "eating" was substantially limited. Considering the side effects of the measures necessary for control of his diabetes, the court held Branham had at least raised a fact question:
He is significantly restricted as to the manner in which he can eat as compared to the average person in the general population. His dietary intake is dictated by his diabetes, and must respond, with significant precision, to the blood sugar readings he takes four times a day. Depending upon the level of his blood sugar, Mr. Branham may have to eat immediately, may have to wait to eat, or may have to eat certain types of food. Even after the mitigating measures of his treatment regimen, he is never free to eat whatever he pleases because he risks both mild and severe bodily reactions if he disregards his blood sugar readings. He must adjust his diet to compensate for any greater exertion, stress, or illness that he experiences.
The district court had also granted summary judgment on the government's contention that his condition created a direct threat to the safety of other agents. The 7th Circuit noted the debate among other courts of appeal as to who has the burden of proof on this issue, but found no need to revisit its view that the defendant does. Using that standard, the Court found the government had failed to carry its burden of showing that no rational jury could rule that his condition was not a threat.
Although brought under the Rehabilitation Act as the Court noted, the same principles would apply under the ADA.