Recent Blog Posts

Type I Diabetes is a Disability

Attorney Karl Gerber — Tue, 19 Apr 2011 04:39:00 GMT

A series of federal appellate cases have held that Type I diabetes constitutes a disability under the more stringent federal standards. A person with Type I diabetes is disabled with respect to the major life activity of eating.

The Lawson court reasoned that Type I diabetes requires the careful monitoring and strict adherence to a perpetual, multifaceted and demanding treatment regime disabling somebody. The testing of one's blood multiple times a day and the administration of insulin injections are substantial limitations on major life activity.

The disabling symptoms of Type I diabetes such as dizziness and weakness were also found to be disabling. The court believed it was disabling not to be able to eat when one wants to and to always be concerned with the availability of food, the timing of eating, and the quantity of food taken in.

The court ruled that eating is a major life activity. The court further reasoned that diabetes affects many organ systems including metabolic, vascular, urinary, and reproductive systems as well as the joints and eyes and negatively impacts high blood pressure thereby creating a physical or mental impairment under 45 C.F.R. 84.3(j)(2)(i).

The court distinguished the wearing of corrective lenses to neutralize a disability from diabetes which involves the coordination of multifaceted factors of constant vigilance.

In determining that diabetes, even if ameliorated through medication, was a protected disability Arnold v. United Parcel, (7th Cir. 1998) quoted from the House Labor Report on the ADA, No. 101-485 pt. II at page 52 (1990) stating "persons with impairments such as epilepsy or diabetes...'are considered to have an actual disability' even if the effects of the impairment are controlled by medication."

Also see Gilday v. Mecosta County (6th Cir. 1997) and Baert v. Euclid Beverage (7th Cir. 1998) holding that there was a triable issue of fact whether diabetes was a disability since it is permanent. Also note that in Baert the plaintiff had to inject himself with insulin, and had been hospitalized for 5 days. The 7th Circuit found this to be evidence of a disability.

Inability to sleep can be a major life activity, McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999). Thus, that symptom that Plaintiff complains of is considered disabling.

Bragdon v. Abbott, 118 S.Ct. 2196 (1998) held that procreation is a major life activity under the ADA. Thus, that symptoms of Plaintiff's diabetes makes it a disability.

Disability Under California Law

Attorney Karl Gerber — Tue, 12 Apr 2011 03:45:00 GMT

In 2001, the legislature provided strong language indicating that FEHA is much more expansive than the Federal ADA. The legislature finds and declares as follows:

(a) The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990...this state's law provides additional protections.

California Government Code Section 12926.1(c),(d)(2) only requires that the disability limit activity. It does not require a substantial limitation. The Code specifically says this distinction is intended to result in broader coverage under this state law than under the federal ADA.

EEOC regulations are not to be used when interpreting the California Fair Employment and Housing Act insofar as it relates to disability law. EEOC regulations are useful when the state statute is molded on the federal law the regulation is based upon. However, where the applicable FEHA statute is not sufficiently molded on the ADA, EEOC Regulations cannot control the meaning given FEHA, Bagatti v. Dept. of Rehabilitation, a disability case under FEHA.

In order to establish a prima facie case of disability discrimination under FEHA the employee must show that she suffers from a disability; the employee is a qualified individual to perform their job; they were subjected to an adverse employment action because of the disability. The employer must offer a legitimate nondiscriminatory reason for the adverse employment action, and the plaintiff then bears the burden of proving that the employer's proffered reason was pretextual.

Welcome to our Disability Law Blog

Attorney Karl Gerber — Wed, 23 Mar 2011 03:59:00 GMT

We are pleased to announce the launch of our Disability Law Blog.