The EEOC recently sued Amtrak under the Americans With Disabilities Act (“ADA”) alleging that Amtrak withdrew an offer of employment to a machinist in a rail yard when it found out that he suffered from epilepsy.  Amtrak allegedly cited fears for the applicant’s safety “should he have a seizure.”  However, as reported in The Hill, the EEOC claimed that the applicant’s doctor had confirmed that he had been seizure-free for years and was fully and safely able to perform the essential job duties of machinist without limitation, while on medication.

The EEOC commented that the ADA protects Americans with disabilities from employment discrimination “based on myths and stereotypes about their conditions.”

Fear, Embrace, Clouds, Sky, Hands

Now is as good a time as any to come back to the issue of employers claiming to base adverse employment decisions upon the “best interests of the employee” with a disability.  Such decisions better not be based upon outdated fears, myths or stereotypes!

Outdated Myths And Stereotypes

I have cautioned employers many times not to discriminate against employees by using concerns about their health or safety.  For example, I reported some time ago on an ADA lawsuit brought by the EEOC on behalf of an employee who was fired because she had a prosthetic leg and the employer “did not want anyone bumping into her.”  An EEOC lawyer stated then that “Firing employees because of baseless fears and stereotypes about their disabilities is illegal.”   I also wrote about an employer who fired a housekeeper after learning that she was pregnant, contending that “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.” An EEOC attorney said that “Employers may not bar pregnant employees from work because of outdated myths or stereotypes.”

In another case, the EEOC sued an employer a couple years ago on behalf of a mechanic who developed endocarditis, an infection of the inner lining of the heart, and after having valve replacement surgery was medically released to return to work. He was nonetheless fired.  His termination letter stated that “[g]iven the nature of  [his] job as a Sheet Metal Mechanic, it is too risky to allow [him] to return to [his] previous line of work,” and his notice of discharge stated  that he was “unable to return to job as a Sheet Metal Mechanic due to ongoing medical condition.”

The EEOC is still targeting baseless fears, outdated myths and stereotypes, and epilepsy is one of the disabling conditions which the EEOC is focusing upon.   

More than two years ago, I wrote that in accordance with its Strategic Enforcement Plan (“SEP”), the EEOC is addressing issues of epilepsy and other diseases and medical conditions in a Question and Answer Series. Both employers (and their HR advisors) and employees can benefit from reading this.  See: http://www.eeoc.gov/laws/types/disability.cfmThe EEOC Chairwoman at the time stated that “Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability.  Many of them are looking for jobs or are already in the workplace.  While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

The EEOC’s press release at the time described these documents as “reflect[ing] the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.”

The EEOC said about the current Amtrak suit that “About one out of every 26 people will develop epilepsy at some point in their lives, and it affects each person differently. It is critical that employers do not base job decisions on stereotypes, but instead carefully consider an employee’s abilities.”

Well put.