EEOC settles complaint over heavy equipment operator with epilepsy

by Walter Olson on July 11, 2012

“The Equal Employment Opportunity Commission has reached a $49,500 settlement with a construction company and utility company for withdrawing a job offer to a heavy equipment operator with epilepsy.” [Judy Greenwald, Business Insurance, earlier] In other news: “Just under two weeks after suffering a seizure that led to two car accidents within minutes of each other, Commerce Secretary John Bryson has submitted his resignation.” [NPR]

{ 9 comments }

1 Ted 07.11.12 at 12:17 pm

The allegation was that his epilepsy was controlled by medication. If so, that’s exactly the supposed intent of the ADA (prohibition of irrational discrimination against the disabled), and I don’t have a problem with this particular result — if and only if the employer is immune from suit over damages caused by a seizure. It was the original fear of liability that caused the discrimination.

2 gitarcarver 07.11.12 at 12:44 pm

Ted,

I disagree.

The company, Garney was awarded a contract by Georgia Power which contained a clause requiring the operators of heavy duty equipment to pass a DOT physical. The DOT is a federal agency, just as the EEOC is.

When the applicant could not pass the physical due to the medication he was taking for the epilepsy, Garmin, as per the contract and per the DOT rules, retracted the job offer.

The problem here may or may not be the ADA. The problem here is that a company, who was following Federal guidelines within a legal contract is somehow held accountable for their legal actions. If there was a fight to be made here, it is with the DOT and their regulations, not the company that applied them.

This ruling sets up an untenable situation for companies where they are held liable for allegedly breaking federal rules (EEOC) or held liable for not following the rules of another agency (DOT).

We can discuss whether the rules are fair, just, right or whatever, but what cannot be dismissed is that a company got caught between two competing sets of federal rules and is paying the price for the feds not being on the same page.

3 Difster 07.11.12 at 12:51 pm

Who cares if he hasn’t had a seizure in 8 years? You don’t give someone with epilepsy or any other debilitating condition a job doing something that will almost certainly kill people and/or cause extensive damage.

Someone with epilepsy should have the good sense not to seek jobs that have a high risk profile even for a healthy person.

What ever happened to common sense?

4 Chris Hoey 07.11.12 at 1:33 pm

In 1989, while trying to obtain some semblance of rationality to the pending ADA legislation in Congress, I used the example of a jeweler being forced to hire an epileptic diamond cutter. When my question was dismissed, I pointed to an actual case involving a narcoleptic surgeon that had survived a summary judgment motion and went to a jury under the law that covered government contractors prior to the ADA. (Picture that, your surgeon falling asleep in the middle of your operation?)
Common sense is not a recognized BFOQ under the ADA.

5 Ted Frank 07.11.12 at 1:49 pm

EEOC claims that DOT physical not required for this job, and the Georgia Power requirement was thus not BFOQ. Perhaps it would be prudent for DOT to extend its regulatory authority, but if they haven’t, there isn’t any federal conflict. So long as the hirer isn’t damned if he does, it’s not as big a deal if he’s damned if he doesn’t.

The premise is that this particular epileptic condition is controlled by medication. Yes, if that premise is false, the EEOC is wrong. And if you have a medical basis to dispute the premise, I’m happy to hear it; I’m agnostic on the question, and can be persuaded either way. But you’re arguing a different case if all you’re doing is pretending that the EEOC was operating with a different premise.

6 Bumper 07.11.12 at 3:29 pm

Ted,
The key word is controlled, it isn’t ever going to be cured. One day he skips his meds, gets dehydrated, over exerts, the meds start to lose effectiveness and the list goes on. And we both know that if anything bad does happen because this employee has a seizure while operating a big ole crane, the EEOC employees who thought it would be cute to shove it down the throat of Garney will be nowhere to be found and if they are, “we were just doing out duty.” Which does not include rational thinking.

7 gitarcarver 07.11.12 at 4:04 pm

I’m sorry Ted, but the requirement is that no one who cannot pass the DOT physical can operate heavy machinery.

If you or the EEOC has a way for a company to determine whether a person can pass a certain test other than to administer the test, I’d be open to hearing it.

As is it, the EEOC saying you cannot have a applicant take a test to insure compliance with another federal regulation is most definitely a conflict.

8 Mannie 07.12.12 at 11:44 am

gitarcarver 07.11.12 at 4:04 pm

I’m sorry Ted, but the requirement is that no one who cannot pass the DOT physical can operate heavy machinery.

That is a Georgia requirement, not a Federal one. There is no DOT jurisdiction over equipment operators. The conflict is between Georgia and the Fed, and the Fed prevails.

9 Mike 07.12.12 at 2:51 pm

Assuming that Mannie is correct, then from now on the Feds will be responsible for determining job qualifications.

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