Legal Rights News Brief

Posted: January 7, 2005

Major Settlement Reached in Case Protecting Rights of Workers with Epilepsy

On December 30, 2004, the U.S. Equal Employment Opportunity Commission and Northwest Airlines, Inc. announced the settlement of a lawsuit under the Americans with Disabilities Act, which will ensure that persons with epilepsy (and insulin-dependent diabetes) who apply for various positions with the airline will not be unfairly denied those positions. The Foundation assisted EEOC in achieving a favorable outcome in this case by providing a variety of resources, including publications and referrals to experts supporting the ability of workers with epilepsy to safely perform these positions.

Northwest had allegedly relied on a company-wide policy of automatically disqualifying applicants for certain laborer positions if they had seizure-related disorders or other disabilities that pose a risk of loss of consciousness, no matter how remote the risk was. A key element of the agreement is that Northwest will conduct an individualized assessment of the current ability of persons to safely perform these positions, with or without reasonable accommodation. Northwest will also provide a settlement fund of $510,000 for distribution among 28 individuals for whom the EEOC was seeking relief.

Federal Report on Needed Amendments to ADA Issued – With Participation by the Foundation

The National Council on Disability recently released its report, Righting the ADA, which contains NCD's legislative proposal intended to restore the protections of the Americans with Disabilities Act that have been restricted by several U.S. Supreme Court decisions over the past few years. Speakers at NCD’s press event unveiling the report included people with epilepsy and their advocates, who spoke about the critical need for these amendments to prevent unjust discrimination. These speakers were Diane Seltzer, Partner, Founder, Seltzer Law Firm (who frequently represents persons with disabilities in employment discrimination cases); and Charlotte Chenoweth, a nurse with epilepsy who was terminated from her position because of the condition. The Epilepsy Foundation has served on a committee advising the NCD on its legislative recommendations. The NCD is an independent federal agency charged with making recommendations to the President and Congress to enhance the quality of life for persons with disabilities. The report and related materials are available on the NCD website.

The NCD's proposed legislation would, for instance, mandate that persons with disabilities may not be denied protection under the ADA merely because the effects of their impairment may be lessened by use of medication or other "mitigating measures" such as assistive devices (e.g., hearing aids). This particular provision would address a major concern for persons with epilepsy, diabetes and other conditions that may be controlled with medication.

As the NCD report points out: based on recent Supreme Court decisions, to the extent that an employer or entity covered under the ADA can successfully demonstrate . . . that an individual’s epilepsy is effectively controlled by medication, the individual cannot challenge the discriminatory actions of the covered entity. This is true even if the employer or other covered entity has an express policy against the hiring of people with epilepsy; puts up signs that say, "epileptics not welcome here," inaccurately assumes that all persons with epilepsy are inherently unsafe; or has the irrational belief that epilepsy is contagious. The unfairness or irrationality of the covered entity's actions and motivations, including stereotypes, fears, assumptions, and other forms of prejudice, cannot be challenged by a person whose condition is mitigated.

The report notes further that "Epilepsy is an illustrative example, but the same principles apply to diabetes, various psychiatric disabilities, hypertension, arthritis, and numerous other conditions that, for some individuals, can be controlled by medication."

Wall Street Journal Supports ADA Amendments and Foundation's Views

In a December 23, 2004, article, the Wall Street Journal supported the NCD's recommended amendments to the ADA, citing information provided by the Epilepsy Foundation. The writer of the article, Al Hunt, executive Washington editor for the Wall Street Journal, called on the Bush Administration to strongly support the legislative proposal. The article noted that "the federal courts, especially the Supreme Court, have undercut the ADA with a narrow, often antagonistic, approach. In a series of cases, a split court limited the coverage of the ADA. An example: The Epilepsy Foundation says in 18 of 26 cases, the courts ruled that a person with epilepsy is not covered by the ADA because they don't have a real disability or it's only episodic or can be addressed with medication."

The Journal further stated that "This clearly flies in the face of the intent of congressional authors, one of whom, former Democratic congressman Tony Coelho, [has epilepsy]." Coelho is the Chair Elect of the Foundation's Board of Directors, and has taken a national leadership role in promoting needed amendments to the ADA.