EEOC sues construction company for not hiring applicant with epilepsy to run heavy equipment

by Walter Olson on December 13, 2011

The EEOC’s press release is not entirely clear about the events giving rise to the dispute, but it appears that Georgia Power through its subcontractor requires that heavy equipment operators on a certain project be qualified to pass the federal Department of Transportation’s physical exam for truckers; that applicant Bryan Mimmovich cannot pass that exam because of his controlled epilepsy; and that the EEOC is now arguing that it is discriminatory for the employer to adopt the DOT physical requirements for the equipment operation job.

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{ 10 comments }

1 DensityDuck 12.13.11 at 12:49 pm

Per the press release, the epilepsy has been controlled by medication.

Would you suggest that they not hire someone with diabetes controlled by insulin?

2 Jim Collins 12.13.11 at 1:09 pm

DensityDuck,
Do you want to accept the liability if he has a siezure while at the controls and kills somebody? A diabetic can monitor their blood sugar levels and has some control over their situation, an epileptic does not.
I have to ask if the adherence to the DOT’s physical standards is a requirement of their union, if they have one, or their insurance carrier?

3 No Name Guy 12.13.11 at 1:33 pm

Density

It would appear based on the linked piece that the mere fact that one is on the epilepsy medication is enough to fail the physical requirements of the DOT – if the epilepsy is controlled or not.

Now, it would be nice if the Feds were consistent. EEOC and the DOT need to huddle and decide – is it safe or not for an epileptic person to operate an 18 wheeler heading down the highway at 60MPH? Is it safe if they haven’t had a seizure since 1988? What about 5 years ago? One year ago? Is EEOC going to sue every trucking firm out there when they don’t hire an epileptic when they fail the DOT physical?

On it’s face, I don’t think it’s unreasonable to expect a heavy equipment operator (in this case operating a front end loader) to have the same medical requirements as an 18 wheeler driver. In both cases, there is substantial risk of others being injured or killed and / or substantial property damage were the operator to have a medical situation while doing their jobs. That said, the over lawyered part of this is that fact that EEOC and DOT seemingly have different standards – make up your minds there Feds.

4 Bumper 12.13.11 at 2:27 pm

If the company is going by DOT rules and regs. it would seem more appropriate for the EEOC to sue DOT and then whoever wins the company go by that ruling. But as we all know common sense died in DC along time ago.

5 gitarcarver 12.13.11 at 4:43 pm

Duck,

The test is administered by the Department of Transportation. Why is Garney and Georgia Power being held accountable for the results or standards of a federally administered test?

If Bryan Mimmovich (the plaintiff) and the EEOC is allowed to say the results of the test are invalid, why should anyone have to take the test to begin with? Why should Mimmovich be given a pass on a requirement with others cannot get that same pass?

For years people have said the ADA is not interested in leveling the playing field but tipping it in the favor of the disabled and against the rights of companies. This seems to be a case which illustrates that fact.

If a company is sued by one department of the Federal government for following the results of a test administered by another department of the Federal government, what does that say about the regulations and requirements of the Federal government?

6 AZFlyer 12.13.11 at 6:11 pm

I wonder what the EEOC would think about the FAA’s treatment of persons with an epileptic history. They will not even consider allowing a private certificate, much less any kind of commercial certificate.

It appears that the EEOC lawyer considers the DOT’s objections are due to myths or stereotypes about epilepsy. I personally know two epileptics that have had seizures after decades of control by medication. It is not the “cure” that he seems to think it is.

7 Bill Poser 12.14.11 at 2:36 am

Does the FAA now refuse certificates to controlled epileptics? I’m pretty sure that it has not always done so because as a teenager I remember my father, a neurologist, testifying in a hearing on such a case, which he told me ultimately resulted in the granting of the certificate.

8 asdfasdf 12.14.11 at 1:56 pm

Reminds me the famous case epilepsy causing car accident case of Hammontree v. Jenner, 20 Cal. App. 3d 528 (Cal. 1971). “Defendant claimed he became unconscious during an epileptic seizure losing control of his car…from 1955 until the accident occurred defendant used phelantin which controlled his condition.” Defendant prevailed on negligence and plaintiff’s argument that strict liability should adhere rejected because “Even assuming…defendant knew he had a history of epilepsy, previously had suffered seizures and at the time of the accident was attempting to control the condition by medication, the [proposed jury] instruction does not except from its ambit the driver who suddenly is stricken by an illness or physical condition which he had no reason by an illness or physical condition which he had no reason whatever to anticipate and of which he had no prior knowledge.”

9 SteveBrooklineMA 12.18.11 at 1:37 pm

I believe people with a history of diagnosed epilepsy must be off medication and seizure free for 10 years before they can pass the DOT exam.

10 DensityDuck 01.09.12 at 1:51 pm

“Do you want to accept the liability if he has a siezure while at the controls and kills somebody?”

Well, I can get run over and killed by a perfectly healthy person who looked the wrong way at the wrong time, so I’m not sure where you’re going with that.

“A diabetic can monitor their blood sugar levels and has some control over their situation, an epileptic does not.”

Either it’s controlled by the medication or it isn’t. And diabetics can screw up their control, suffer mental effects from it, and get into car accidents. If you want to claim that “medication to control the condition doesn’t guarantee you won’t suffer effects” then epilepsy is hardly the only condition you need to worry about.

And–like I said in the alcoholism post–I can’t think of a better way to discourage honest self-reporting than to fire people for doing it.

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