Jottings By An Employer's Lawyer

Sunday, November 20, 2005

"Uncontrolled" Diabetes - And Summary Judgment for the Employee in the 5th Circuit

For some time now lawyers representing both employers and employees have seen "actual disability" cases under the ADA as difficult to make. But just as nature abhors a vacuum so does the law, and more cases are being brought under the "perceived disability" prong. That trend will only quicken following last week's decision in Rodriguez v. Conagra (5th Cir. 11/14/05) [pdf]. The 5th Circuit, not known as pro-employee, not only reverses summary judgment for the employer, but finds the plaintiff was entitled to liability as a matter of law.

Rodriguez worked as a manual labor for Conagra through a staffing agency. Based on his productivity, he was offered a permanent job subject to passing a physical. At the physical, based on a urine sample that showed a high sugar level and his failure to recall the name of his doctor or the medication he took to control his diabetes, the examing doctor termed his diabetes "uncontrolled." Based on that information, the company declined to hire him.

Judge Weiner, in a spirited opinion, relied heavily on the fact that the case was a perceived disability claim which, in his view, completely eliminated the employer's argument that it based its decision on the belief that his diabetes was "uncontrolled." In Judge Weiner's view -- since there was no actual disability, there was nothing that could have been "controlled."

Although many strong supporters of the ADA have decried its effectiveness, this case does show one aspect that works well. The requirement that physical examinations occur only after a job offer has been made, designed to shine a spotlight on any decision that turns on a medical condition - certainly did so here.

A hat tip to the Disability Law blog, which had it right, if perhaps understated, Good Fifth Circuit Diabetes Case, when it reported the case early last week. Rodriguez was not alone in this case as amicus briefs were filed by a group of amicus, AARP, Advocacy, Inc., American Diabetes Association and Coallition of Texans with Disabilities, see their brief here; and a brief by the EEOC. The link to the briefs are collected on the Employment Discrimination page of the website of American Diabetes Association, along with information on other diabetes related cases the Association is following.


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