Seventh Circuit Finds Discharge Lawful When Based on the Risks Posed by Such Conditions
The Americans with Disabilities Act (“ADA” or “Act”) protects only certain impairments as disabilities—those that substantially limit engagement in a “major life activity.” Yet an employer that terminates an employee with a condition that does not rise to the level of a “disability” may still be subject to claims that it acted pursuant to its belief that the individual was disabled and therefore, violated the ADA. Recently, in Equal Employment Opportunity Commission v. Schneider National, Inc., the Seventh Circuit affirmed a trucking company’s right to terminate an employee because his medical condition, which was not a “disability” under the Act, presented unique risks to the company. 2007 U.S. App. LEXIS 6454 (7th Cir. March 21, 2007).
Jerome Hoefner, a truck driver, worked for Schneider National until he had a fainting spell and was diagnosed with a condition called “neurocardiogenic syncope”—a disorder of the nervous system that can produce a sudden drop in blood pressure, causing a person to faint. The disorder is treatable with medication and would not prevent an individual from satisfying federal safety standards for driving large or heavy trucks, or trucks transporting hazardous materials. However, once advised of the diagnosis, Schneider National terminated Hoefner’s employment pursuant to the company’s zero-tolerance policy for drivers with neurocardiogenic syncope. This policy was instituted because, two years earlier, another driver for Schneider National who had been previously diagnosed with the condition—Michael Kupsky—drove a Schneider truck off a bridge and was killed. The company was advised that “it appeared that [Kupsky] may have fallen asleep.” After his termination from Schneider National, Hoefner obtained a similar trucking job with another company, and the Equal Employment Opportunity Commission brought suit on Hoefner’s behalf, contending that Schneider National fired Hoefner because it mistakenly believed that neurocardiogenic syncope is a disabling condition (protected by the ADA) and therefore, improperly “regarded” Hoefner as a disabled individual.
The Seventh Circuit affirmed summary judgment for Schneider National. It found that there was no evidence suggesting that the company exaggerated Hoefner’s condition or mistakenly thought that neurocardiogenic syncope disabled Hoefner from engaging in a “major life activity.” Rather, the evidence showed that, while aware Hoefner could perform his driving duties and meet federal standards for doing so, the company was simply unwilling to risk a repetition of the Kupsky calamity. The court found that this decision was not prohibited by the ADA. Additionally, the fact that the risk of repeating the Kupsky crash was small or that other companies were willing to assume such a risk was immaterial. “Schneider is entitled to determine how much risk is too great for it to be willing to take.” Indeed, there are various reasons a company may not wish to take on even a low liability risk—e.g., the company is “small, financially fragile, owned by a trust, or as in this case had had an experience of the risk materializing.” Such decisions are “irrelevant to liability under the [Act], even if [a] company’s degree of risk aversion [is] ‘unique’ in its industry.”
The court went on to find that even if this analysis were wrong, summary judgment for Schneider National was still appropriate because there was no evidence that the company considered neurocardiogenic syncope to impair any “life activity” beyond driving a truck for Schneider (and perhaps any other company with higher safety standards than the federal government’s), which does not constitute a “major life activity.” The court surmised, “[i]f being able to drive a huge truck or a truck filled with hazardous chemicals safely, or being able to fly a plane or guide climbers to the summit of Mt. Everest, is a major life activity, then virtually the entire population of the United States is disabled,” which is of course “ridiculous.”
The Schneider case reminds us that, for purposes of medical impairments that do not rise to the level of a disability covered by the Act, employers are entitled to determine that safety risks posed by such impairments may make individuals “less than ideally suited for a job.” Schneider further instructs that just because individuals with such impairments meet the legal or customary standard to perform a given job and are commonly employed to do so in an industry, every employer is not thereby compelled to follow such industry standards and customs. Employers acting pursuant to their own individual risk and safety assessment of an uncovered medical impairment (and not a belief that the employee is “disabled”) may legally refuse to employ an individual who has the condition. Even if the employer’s aversion to risk is “unique” in its industry, the decision to act pursuant to such a risk is not prohibited by the ADA. Employers who contemplate making hiring or discharge decisions based on a “unique” risk and safety assessment should consult with counsel to confirm whether such an assessment would be permitted under the ADA and Schneider.