Alarming Rise In Diabetes Cases Poses High Risk of Increasing Legal Problems for Workers and Employers
Diabetes cases are rising at an alarming rate in the United States, particularly in New York City where health officials say "diabetes is epidemic." And there is a troubling side-effect: the number of cases of alleged discrimination against diabetics in the workplace is also rising. Some workers are getting dismissed because they are diabetics. New York City employment law expert David Wirtz says now more than ever employees with diabetes and their employers should be prepared to handle these cases lawfully. He provides insight on how to proceed.
(PRWEB) December 10, 2003
NEW YORK, N. Y. (PRWEB) December 10, 2003– A soaring number of diabetes cases, particularly in New York City where the health commissioner has declared "diabetes is epidemic," is increasing the risks of legal problems involving charges by diabetics of discrimination in the workplace.
Workers with diabetes are complaining in growing numbers of being unfairly treated on the job, even fired because of their medical conditions.
"Now more than ever, it is in the interests of employees and employers to be perfectly clear about what they can and cannot do," said New York labor and employment law expert David Wirtz of Grotta, Glassman & Hoffman, 650 Fifth Avenue.
There are an estimated 17 million people in the United States aged 20 or older with diabetes, and the number is on the rise. In New York City, the figures are significantly higher.
Nearly 1 in 12 New Yorkers -- almost a half million people -- having been diagnosed with diabetes, the city's Department of Health and Mental Hygiene said in a November, 2003 report entitled "Health Alert: Diabetes Is Epidemic." The report also said about 250,000 more may have diabetes but don't yet know it. In the past eight years, the department said, the number of New Yorkers with diabetes has doubled.
And the number of complaints charging discrimination in the workplace by employees with diabetes is also rising, the federal Equal Employment Opportunity Commission (EEOC) reported.
The EEOC said that during the last five years, the agency has seen a 13% rise in the number of charges filed under the Americans with Disabilities Act (ADA) alleging discrimination based on diabetes.
Attorney Wirtz said the sheer size of the numbers raises the potential for misunderstanding the legal rights of diabetics in the workforce, and the obligations and limitations of employers.
"From the application stage to the on-the-job phase, there are specific steps workers can take to protect their privacy, health and jobs, and steps employers can take to ensure a safe and productive environment," said Wirtz.
Wirtz said both employees and employers must be aware of their rights and responsibilities. For instance, employees should consider informing their superiors or persons they believe are acting unfairly toward them about their diabetic condition and how it can be managed. On the other hand, employers have to understand the consequences of questions about things they have no right to know, and they must understand the fundamental differences under New York State and federal disabilities laws.
Wirtz, who has more than 25 years experience in the labor and employment law field, formerly served as General Counsel to the New York City school system, and is currently Adjunct at the Cardozo School of Law.
Grotta, Glassman & Hoffman exclusively handles labor and employment matters on behalf of employers. Its roster of clients includes Fortune 500 companies, educational and medical institutions and not-for-profit organizations.
The American Diabetes Association has catalogued hundreds of complaints and lawsuits by diabetics in the workplace. Here is a random sampling:
1. An Air Traffic Controller Specialist sued the Federal Aviation Administration (FAA) after he was removed from his position and later fired because he began using insulin. The courts upheld the dismissal, ruling that the controller was not able to establish pretext where he failed to provide the information required by the FAA's protocol for individual assessment of air traffic controllers who use insulin, despite numerous requests for specific information over several years. Further, the courts found that although later submission may have indicated his diabetes was under control at one point in the long process that led to his discharge, there was nothing to demonstrate stable control over a period of time. The courts said he also failed to provide sufficient evidence that there were available positions that he was qualified for at the relevant time. *
2. A caseworker, who is a diabetic and worked for the North Carolina Department of Health & Human Services, was fired for failing to keep up with his caseload. But a state court ruled he was wrongfully terminated. The court held that insulin-dependent diabetes and related vision problems are "handicapping conditions" under the state statute making the employee a "handicapped individual". The court further found that the employee's failure to keep up with his caseload was directly related to his diabetes-related vision problems and that employer failed to make reasonable accommodations for employee's disability.**
3. A New York City subway maintenance worker wanted a promotion. The Transit Authority required a physical exam. He complied, and the doctor found his diabetic condition was in "poor control." Even though he had worked for the TA for 40 years with diabetes and received satisfactory job performance evaluations, the worker was placed on restricted duty and effectively barred from a promotion. He sued in Brooklyn Federal Court on grounds of discrimination under the Americans With Disabilities Act (ADA) – and won. The court ruled his work record showed he was qualified and did not pose a threat of injury to himself or others. ***
4. A New Orleans police officer had diabetes and underwent coronary artery bypass surgery. He admitted he could not perform the essential functions of his job as a police officer. His superiors told him the only job available was as a truck driver. But he was unqualified for this position because of his medications, and was dismissed. He sued the Police Department, but his case was dismissed by a Louisiana court that found the department had made "reasonble accommodation."****
5. A former assistant principal was fired by the Glendale Union High School District near Phoenix, which had sought to reassign her from one school to another because of personal difficulties she was having with her principal. The assistant principal objected publicly to the change, saying it would worsen her diabetes. She sued under the ADA. A federal district judge dismissed the case, but a a federal appeals court reinstated her lawsuit, saying the lower court had erred in ruling that the assistant principal wasn't a qualified individual with a disability, and it added that there was evidence adequately supporting a verdict that her "uncontrolled," "brittle" diabetes substantially limits her ability to walk because of the effect of physical exertion upon her blood glucose levels.*****
6. A New York school bus driver with diabetes was discharged by Laidlaw Transit Inc. The company acted on the grounds that Department of Transportation regulations deemed he was unqualified to drive a bus. Both sides agreed he was disabled, but disagreed on the firing. The driver sued, charging discrimination under ADA. But the Federal Court in Manhattan dismissed his claim, ruling that he was not qualified and Laidlaw was not required to "reasonably accommodate him" because of his diabetes. ******
CITATIONS:
Dyrek v. Garvey, 334 F.3d 590, 14 A. D. Cases 886, 26 NDLR P 77 (7th Cir. 2003). ** N. Carolina Dept. of Health & Human Services v. Maxwell, 576 S. E.2d 688 (N. C. App. March 4, 2003)
*** DiPol v. New York City Transit Authority, 999 F. Supp. 309 (E. D.N. Y. 1998).
**** Muhammad v. New Orleans Police Dep't, 791 So.2d 788
(La. Ct. App. July 11, 2001).
***** Lutz v. Glendale Union High School, 8 Fed. Appx. 720 , 2001 U. S. App. LEXIS 7766, 2001 WL 408989 (9th Cir. 2001)
****** Christopher v. Laidlaw Transit Inc. 899 F. Supp. 1224 (S. D.N. Y. 1995).
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