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How a Bizarre Catch-22 Has Gutted Disability Protection in America

By       Message Dan Lawton       (Page 1 of 2 pages)     Permalink    (# of views)   1 comment

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When Steven Orr accepted a pharmacist position with Wal-Mart in 1998, he never expected that his diabetes would eventually trigger his dismissal. Orr, who was diagnosed with type-two diabetes in 1987, had been successfully treating his illness for the last eleven years. By injecting insulin three times a day, he had managed to normalize his glucose levels and maintain good health and a stable job. For this reason, he didn't consider his disability to be an 'occupational hazard.'

                                           

In fact, before he began working for Wal-Mart, Orr disclosed his condition to his regional manager along with his sole medical requirement; he needed to take a regularly scheduled 30-minute break for lunch every day. By eating at a consistent time, Orr dramatically decreased the risk of his glucose levels becoming too high (hyperglycemic) or too low (hypoglycemic). Wal-Mart agreed to this condition, and Orr began work in January of 1998. However, six weeks later, Orr's regional manager was replaced. His successor refused to grant Orr the same privilege.

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Forced to eat whenever a lull in business allowed him, Orr's blood glucose levels vacillated erratically. Extreme hypoglycemia can be a fatal condition, and by not taking a regularly scheduled lunch he was seriously jeopardizing his health. Despite stressing this fact to his supervisor, Orr was still refused the privilege of a half-hour lunch break. In late May, worried about his safety, he resumed closing the pharmacy for a half-hour in order to eat. Within days, his employment was terminated by Wal-Mart. According to Orr, Wal-Mart made no effort to hide the reason for his termination. "When I was fired, I was told flat out that it was because I had diabetes," he recently testified to Congress.

Surprisingly, it's not a claim that Wal-Mart refuted. In fact, when Orr filed suit under the Americans with Disabilities Act (ADA), Wal-Mart didn't deny his termination was directly related to his disability. Instead, they argued that Orr's diabetes didn't meet the standard for disability protection, because he was able to mitigate his illness with medication. Like more than 90% of employers who face a disability lawsuit, Wal-Mart won.

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Orr's case is just one of many that disability advocates and lawmakers cite as evidence that the ADA needs to be re-written to restore its original intent. When Congress passed the ADA in 1990 it was with strong support from both Democrats and Republicans, who believed that a Federal law similar to that of the Civil Rights Act of 1965 was needed to protect America's disabled from discriminatory practices. However, due to a strict legal interpretation by the courts, the statute has been unable to protect many of the individuals it was intended to.

The text of the ADA prohibitions prohibits discrimination against individuals with disabilities and defines "disability" as

(A) A physical or mental impairment that substantially limits one or more major life activities

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(B) A record of such an impairment; or

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Dan Lawton is a freelance writer interested in a unreasonably wide range of political issues. For more of his columns, check out his blog Politics&Funk

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