Issue 115 Item 3 Diabetes Found Not to Be a Disability?

A federal appeals court ruled Monday that pharmacist, Mr. Orr, with diabetes cannot hold his employer liable for not allowing him adequate breaks to take insulin,. A panel of the 8th U.S. Circuit Court of Appeals ruled 2-1 against, a former Wal-Mart pharmacist who sued alleging violations of the Americans with Disabilities Act.

The anti-bias law prohibits employers from discriminating against a "qualified individual with a disability" because of that disability.

Under the law, a qualified person is defined as one who can perform a job when given reasonable accommodation. A disability is defined as a condition that substantially limits a major life activity.

The court upheld an earlier ruling that Orr failed to show he was disabled.

To control his diabetes, Orr takes insulin three times a day and eats a special diet within 30 minutes of taking insulin.

Before taking the Wal-Mart job in 1998, Orr told his district manager, Rick Coleman, that he was a diabetic. Coleman authorized Orr to take a lunch break and midday breaks during his 10-hour work shift to take insulin.

But Orr began closing the pharmacy for 30 minutes at noon to take his insulin and eat lunch, which violated the policy that the pharmacy must remain open during store hours.

He was later fired.

In its ruling, the appeals court cited a 1999 U.S. Supreme Court ruling that said the determination that someone is disabled must be done on an individual basis.

In that case, the high court said "a person whose physical or mental impairment is corrected by medication … does not have an impairment that presently ‘substantially limits’ a major life activity."

The high court assumed working is a major life activity, but noted that federal guidelines did not include such a definition.

In Monday’s opinion, Judge William Riley said Orr failed to present evidence "explaining either how diabetes substantially affects his major life activities.

"Health conditions that cause moderate limitations on major life activities do not constitute disabilities," Riley said. "To hold otherwise could expand the ADA to recognize almost every working American as disabled to some degree."

Judge Donald Lay dissented, calling the ruling "myopic."

"Orr’s entire case turned on the refusal of his employer to allow Orr to follow a dietary regimen. Thus, eating at defined times is directly related to his ability to work," Lay said.