The Seventh Circuit Court of Appeals recently ruled that an insulin-dependent diabetic employee may proceed with his Rehabilitation Act claim against the IRS. Branham v. Snow
, No. 03-3599 (7th Cir. Dec. 17, 2004). Gary Branham ("Branham") claims that the IRS illegally rejected him for a criminal investigator position because of his condition. While the district court had granted summary judgment in favor of the IRS, the Seventh Circuit reversed, holding that Branham had raised genuine issues of material fact regarding whether he can perform the essential functions of the investigator job and whether he can do so without threatening the safety of himself or others.
The Rehabilitation Act prohibits disability discrimination in any program that receives federal funding. Similar to the Americans with Disabilities Act ("ADA"), the Rehabilitation Act defines an individual with a disability as any person who has an impairment that substantially limits one or more major life activity, who has a record of such impairment, or who is regarded as having such an impairment. The Seventh Circuit has ruled in two prior cases that a person with Type I diabetes can be substantially limited in one or more major life activity (eating and caring for oneself), but neither case determined the outcome here. Rather, the Court held that under both the Rehabilitation Act and the ADA an individualized assessment of the person's actual condition must be done - - diabetic status alone is insufficient to qualify as a disability.
Branham's Type I insulin-dependent diabetes requires him to check his blood sugar level four to five times each day to determine the amount of insulin needed, when to eat, as well as the amount and type of food to be eaten. Branham always keeps insulin and carbohydrates with him to regulate his blood sugar level. (High blood sugar can cause heart, kidney and nerve disease, as well as blindness. Mild low blood sugar (too much insulin) can cause tremors, sweating, irritability, confusion and drowsiness, while severe low blood sugar may lead to unconsciousness and convulsions and can be life-threatening.) Branham never has had any severe reactions to high or low blood sugar. However, on occasion he suffers minor reactions, such as trembling and sweating.
Branham began working for the IRS in 1986 as a revenue agent. In 1998, he applied for a job as a criminal investigator and, in March 1999, was notified that he tentatively had been selected for the position, pending a satisfactory physical examination. After subjecting Branham to a physical exam, the director of federal law enforcement programs and federal occupational health determined that Branham was not medically qualified to be an investigator because he could not perform the essential functions of the job, with or without reasonable accommodation. The director further determined that Branham likely would suffer incapacitation that would put himself, other employees, and the public at extreme risk of harm. The IRS notified Branham of its finding that he was not medically qualified for the job, "which requires the ability to work irregular hours, respond to unanticipated requests and react in a timely and appropriate manner in an emergency or crisis." Branham countered this finding with a statement from his own doctor, which indicated that Branham had good control of his diabetes and that he is fully capable of performing the duties of a criminal investigator.
In individually assessing Branham, the Court determined that he "is significantly restricted as to the manner in which he can eat as compared to the average person in the general population." He may need to eat immediately, wait to eat, or eat certain foods, and he is "never free to eat whatever he pleases." With this in mind, the Seventh Circuit held that a judge or jury could decide that Branham is substantially limited in the major life activity of eating and therefore disabled under the Rehabilitation Act. The Court further held that a trier of fact could conclude that the duration of any risk would be insignificant, that his diabetes would not impair the performance of his duties and that he does not present an imminent risk of harm. Accordingly, Branham is allowed to proceed with his claim under the Rehabilitation Act.
Employers should be mindful of their need to reasonably accommodate employees with disabilities - - including those with diabetes. This is an area that can be challenging to navigate and, as this case demonstrates, decisions must vary based on each employee's individual circumstances.