Let them eat cake: diabetes and the Americans with Disabilities Act after Sutton.

AuthorOlsky, David

INTRODUCTION

The [Equal Employment Opportunity Commission] guidelines' directive that persons be judged in their uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA.... For instance, under this view, courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes. Justice O'Connor, Majority Opinion, Sutton v. United Airlines.(1) In 1992, Michael Bombrys, a Toledo resident, applied to become part of the police force of his home city. On September 17, he was selected to begin training.(2) As part of the hiring process, Bombrys underwent a series of physical and psychological tests. He passed these tests in all respects except one: He had diabetes and, pursuant to Toledo policy, he was automatically rejected. He provided medical records to the city's chief physician to demonstrate that his diabetes was well controlled, but the chief physician had been specifically instructed by the Civil Service Commission to reject any applicants with insulin-dependent diabetes. Indeed, both parties agreed that he was fully qualified to train as a police officer in all other respects, and that the sole basis for Bombrys's rejection was his diabetes.(3)

Bombrys subsequently brought suit against the city under the Americans with Disabilities Act ("ADA").(4) Each side made persuasive arguments as to whether he should be allowed onto the force. To win his case, Bombrys had to demonstrate that diabetes constituted a disability, that he could perform the essential functions of a police officer (either with or without reasonable accommodation), and that Toledo rejected his application because of his diabetes.(5) The city agreed that it had fired Bombrys because of his diabetes and that his diabetes constituted a disability. It argued, however, that it could not make a reasonable accommodation for him because, due to his condition, Bombrys could become delusional, confused, and a danger to himself and those around him.(6) Bombrys argued that he could perform the duties with simple accommodations, such as blood-sugar monitoring equipment, food, and insulin injections.(7)

The judge carefully weighed each benefit and drawback of the exclusion policy. He found that an earlier ruling upholding the FBI's blanket exclusion of diabetics could be distinguished from the present case because in the intervening years,(8) Congress passed the ADA, which discourages such blanket exclusions.(9) The judge then considered the nature of diabetes as an impairment and the requirements of a police officer on the Toledo force. He evaluated the testimony of insulin-dependent officers on the Toledo police force,(10) the testimony of medical experts on the wisdom of hiring insulin-dependent diabetics as police officers, and evidence of diabetic-friendly policies in nearby cities.(11) The court ultimately determined that although the city had very real policy concerns in keeping out diabetics, the blanket exclusion could not be reconciled with the lack of exclusions for those with other potentially disabling conditions, such as epilepsy or asthma. Furthermore, the experience of current Toledo officers with diabetes demonstrated that an insulin-dependent diabetic is physically capable of serving with the force, as long as he continued to control his diabetes. Consequently, the court struck down the policy as irrational, counter to the purposes of the ADA, and possibly based upon impermissible stereotypes.(12)

Regardless of whether the court reached the correct decision in Bombrys v. City of Toledo, it made the correct inquiry under the ADA: It weighed various factors to determine whether or not the accommodation requested by the plaintiff was "reasonable." Rather than deciding the case on either a motion to dismiss or summary judgment, the court conducted a full hearing and waded through a sea of facts to determine the merits of the policy and the nature of the disability. Whether or not one agrees with the court's decision--that a diabetic possibly prone to episodes of impaired consciousness (or, rarely, aberrant and violent behavior) has a legal right to a job that requires him to carry a firearm--it is at least well reasoned, informed, and limited to the facts of the particular case. However, while this precedent may influence future decisions regarding the role of diabetics in the workplace, it does not settle the issue of whether accommodations for diabetics are legally required of all employers.

In June of 1999, the Supreme Court fundamentally changed this reasonability inquiry in Sutton v. United Airlines.(13) In Sutton, the Court held that an individual will be considered disabled only after all "measures that mitigate the individual's impairment" are taken into account.(14) In that case, the plaintiffs, twin sisters, applied for employment as commercial airline pilots with United Airlines. The twins suffered from severe myopia, but wore glasses, which corrected the impairment.(15) Without even considering the plaintiffs' qualifications for employment, the airline rejected their applications, citing their vision impairment. The Court held that these petitioners could not seek relief under the ADA because they were not disabled--plaintiffs must be "presently" disabled, not disabled in "their hypothetical uncorrected state."(16) Furthermore, the Court held that United did not "regard" petitioners as disabled because, under this prong of the ADA, United did not "entertain misperceptions" about their myopia.(17) In essence, the Court held that as long as employers accurately understand the nature of the impairment, and do not set employment qualifications based on misconceptions or stereotypes, the employee enjoys no protection from discrimination on the basis of that impairment if he or she takes measures that fully correct the impairment.

In Sutton, then, the Court changed the focus of the inquiry from whether a disability can be accommodated by an employer to whether the impairment is a disability. By changing the inquiry to a legal (rather than factual) one, the Court shifted power to the judges who determine as a matter of law whether a person is disabled, and away from factfinders, who would determine whether employers could make a reasonable accommodation. This puts diabetics in a Catch-22: they must either demonstrate that they are so disabled after taking remedial measures as to prevent any reasonable employer from making an accommodation for their disability, or risk having the case thrown out on a motion to dismiss because they cannot demonstrate that diabetes is a disability. If Bombrys had been decided after Sutton, the court would have granted either summary judgment or a motion to dismiss. Bombrys demonstrated so well that he was capable of being a police officer without any fear of diabetic episodes that he would not be considered "disabled" under the Sutton Court's construction of the ADA.

In this note, I will explore this conundrum and its implications for persons with diabetes. Part I will discuss the nature of diabetes and the employment and insurance concerns of diabetics. Part II will explore one of the topics at issue in Sutton--the true purposes of the ADA. I will present a deeper analysis than either the majority or the dissenters in Sutton by examining whether the ADA was meant to cover both rational and irrational discrimination and how courts addressed the ADA claims of diabetics before Sutton. In Part III, I will analyze the Sutton decision and its implications for diabetics and persons with disabilities in general. I will conclude in Part IV by presenting some possible solutions to the conundrum and evaluating potential judicial alternatives.

Ultimately, I argue that by changing the inquiry from accommodations to the nature of the disability, the Court has focused on the wrong individualized inquiry, much to the detriment of those who should be protected by the ADA. Diabetics face both irrational and rational discrimination in employment contexts--irrational fears about the likelihood of violent episodes, and rational but improper fears about the increased cost of health insurance for the employer. By outlawing the use of medical exams that alert employers to potential disabilities,(18) Congress intended to quash such discrimination and to allow diabetics to join the work force on equal footing with non-diabetics. In the future, a rational employer who wants to hold down its health care costs might be able to screen out otherwise healthy insulin-dependent diabetics because they would not be considered disabled under the ADA. Hopefully, either the Supreme Court or Congress will recognize this problem and act accordingly.

  1. THE REALITY OF DIABETES

    Diabetes is one of the most pervasive and worsening health problems facing American society today. The disease afflicts a broad swath of Americans, young and old. At least 15.7 million people, or 5.9% of the United States population, have diabetes; of these, 5.4 million are unaware that they have the disease.(19) Diabetes is the seventh leading cause of death in the United States, contributing to more than 187,000 deaths in 1995.(20) If inadequately treated, diabetes can cause blindness (12,000 to 24,000 cases each year), kidney disease (it is the leading cause of end-stage renal disease), nerve disease, amputations, heart disease, and stroke.(21) Even conscientious and well-treated diabetics frequently suffer from these complications and have

    above-average medical costs. It is such a pervasive problem that the legislative findings of the ADA specifically named diabetics among those with disabilities.(22)...

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