Diabetes Discrimination—Protect Yourself, Learn the Facts

| Nov 1, 1998

Living with diabetes increases the likelihood of experiencing on-the-job discrimination. Since 1992 more than 2,000 people filed complaints with the U.S. Equal Employment Opportunity Commission (EEOC) specifically stating they were mistreated at work as a result of their having diabetes. Another 6,500 complaints cite visual ailments and problems with extremities-medical concerns frequently associated with diabetes-as underlying reasons for job discrimination.

Everyone with diabetes, as well as their family members, should become familiar with how federal laws protect their workplace rights. While many states have their own unique employment laws, the Americans with Disabilities Act and the Family and Medical Leave Act offer uniform protection throughout the nation. Here is how they work:

Americans With Disabilities Act

The Americans with Disabilities Act (ADA) offers recourse for work-capable persons with disabilities who have been illegally discriminated against. The ADA mandates that people with diabetes are among those covered.

Private employers with 15 or more workers must adhere to the ADA. Governmental agencies are governed by a similar law. Regulated employers are not supposed to consider a worker's disability when making hiring, firing, salary and other job-related decisions.

Sometimes after a worker is hired, that worker will be required to undergo a medical examination for the company. If after such an examination the job offer is rescinded, the potential employee's lawyer would probably be able to prove the job was lost due to the fact that he had diabetes.

Employers must also make reasonable accommodations if workers with diabetes require assistance.

For example, if a computer programmer's vision is impaired by diabetes-related retinopathy, the employer (if the company employs at least 15 people) has a responsibility to provide the equipment necessary for that programmer to do his job-if the employer can reasonably afford to do so. This may require installing special software to enlarge text or purchasing a larger monitor.

Workers should document requests for reasonable accommodations by making them in writing and maintaining photocopies. Large employers are held to particularly strict standards and can be required to make significant, expensive accommodations. Still, accommodations often are as inexpensive and simple as changing the timing or frequency of work breaks.

Remedies

Victims of illegal job bias can seek monetary compensation for their lost wages and possibly emotional anguish. Persons subjected to especially offensive treatment may also seek additional compensation to punish employers. Workers prevailing at a trial might obtain reimbursement for attorneys' fees and legal expenses.

Workers without diabetes but having family members with the disease could also qualify for full ADA protection. Employers sometimes discriminate against "healthy" workers who receive family health insurance benefits. As insurance outlays for test strips, insulin, syringes and medical care for husbands, wives and children of employees threatens to raise employer health care premiums, these workers also become vulnerable to illegal firings.

An example of this might be a female employee whose husband is diagnosed with diabetes related kidney disease and must undergo expensive dialysis treatment. If she subscribes to her company's insurance plan, and the plan is extended to her family, the insurance will pay for the treatment. As a result, the company may see a rise in their insurance premiums and be tempted to fire the woman, but doing so would violate her rights under the ADA.

Limiting Government Delays

Job bias complaints must be filed with the government within short reporting deadlines. Overwhelmed with cases, the U.S. EEOC and most state agencies typically lack the time or resources needed to conduct timely and thorough investigations. Government agencies wait months or even years before determining if they will take action.

Private attorneys can expedite the process by filing ADA lawsuits on behalf of their clients. Even after filing a complaint with a governmental agency, job bias victims can retain private attorneys to preserve vital evidence, seek expedited settlements and prepare their cases for trial.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is providing workers with broader benefits than many employers and politicians had anticipated.

Private sector employers with 50 or more workers within a 75 mile radius, and all governmental employers, are required to grant workers unpaid leave to care for their own serious medical concerns. Leave may last as long as 12 weeks or be taken at shorter intervals, such as missing work for half a day each week to go to the endocrinologist.

Workers may also take time off to assist ill parents or children. To qualify for FMLA leave, employees must have been on the job for at least one year and have worked 1,250 or more hours within the prior 12 months.

Employer Indifference

Employers are violating FMLA with alarming frequency, according to studies by the University of California at Berkeley and the National Association of Working Women. Nearly one quarter of the employers questioned in a nationwide survey failed to instruct their supervisors about FMLA and one in five organizations didn't inform workers of the law's existence, the University of California study revealed.

With so many people unaware of this new law, it's not surprising that courts have had relatively few FMLA lawsuits to issue rulings on. Still, some of the newer rulings, along with recently written guidelines from the U.S. Department of Labor, indicate that FMLA leaves of absence are available in a wide range of circumstances.

Broad Protections

Recent interpretations of FMLA have been helpful for workers such as Penny Brannon of Jamestown, Tennessee. While missing work to care for her young daughter who had been suffering from flu-like symptoms, the garment worker was fired for exceeding her employer's permitted number of absences. Previously, the OshKosh B'Gosh factory worker had been absent from work for reasons not related to her daughter's illness.

Brannon's employer tried to justify the firing by stating that the child's cold was not a serious ailment. FMLA, the employer noted, was intended to offer leave time only when employees needed to care for "serious health conditions" facing themselves or severe health problems confronting their parents or children. Brannon's daughter had been treated by an emergency room physician, remained ill for more than three days and had been given prescription medication.

Brannon was fortunate. The judge hearing her case ruled that her daughter's illness was deserving of FMLA benefits. Many judges, perhaps even most, would have ruled that even flu-like symptoms involving emergency room care are not sufficiently serious to justify FMLA benefits. In fact, the Department of Labor's own FMLA guidelines exclude common flu and cold symptoms from FMLA protection.

Still, as the judge who heard Brannon's case stated, the law's terminology "may include more ailments than Congress intended the FMLA to cover." For many people with diabetes, medical concerns which may be trivial to others can take on heightened concern. Wounds and injuries which may be a mere inconvenience to most persons may require special medical attention and at-home rest for persons with diabetes and other medical conditions.

Chronic Diseases

Writers of FMLA regulations chose to avoid creating a master list of illnesses, ailments and conditions for which FMLA leave should be given. Yet, FMLA rules specify that leave must be given for doctor visits associated with pregnancies (even those free of complications), medical checkups for persons living with chronic illnesses and the medical complications associated with these ailments.

FMLA acknowledges that persons having chronic health conditions (diabetes is considered a chronic health concern) and who suffer from occasional "flare-ups" are entitled to FMLA leave, even when making use of outpatient care or home-based treatments.

When filing lawsuits against employers who have violated their FMLA rights, workers can seek full reimbursement for their lost wages. Employees who kept working after being wrongfully denied leave time to care for ill relatives may seek reimbursement for the costs of hiring private nurses or other caretakers.

FMLA further penalizes employers who are found to have acted in "bad faith." These employers can be required to pay workers twice the amount of their actual dollar losses.

Finding An Attorney

Here are some suggestions which can increase the odds of finding a lawyer who can capably assist you:

  • Ask attorneys you think highly of to provide you with names of practitioners in the field. Most lawyers know of those skilled in other legal specialties.
  • Call the National Employment Lawyers Association in San Francisco. Ask that the association provide you with names of member attorneys located in your area. This association comprises attorneys who represent victims of job bias. (415) 227-4655.
  • Call the local offices of the American Diabetes Association or the Juvenile Diabetes Foundation. Staff members at these local offices often know of area attorneys having heightened interests in diabetes-related issues such as employment law.

 

Loring N. Spolter, a Fort Lauderdale trial attorney who has type I diabetes, litigates cases on behalf of victims of employment discrimination. As a member of the National Employment Lawyers Association's teaching faculty, he has lectured on strategies lawyers should use when litigating claims on behalf of workers with disabilities. Formerly, Spolter was a New York City prosecutor with the Brooklyn District Attorney's Office. He can be reached at (954) 728-3494.

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Categories: Diabetes, Discrimination, Insulin, Legal, Syringes, Type 1 Issues


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