• Burning Down the House: Considering the "Worst Case Scenario" In Determining Whether an Obese, Diabetic Employee is Qualified
  • July 20, 2010 | Author: Michael J. Soltis
  • Law Firm: Jackson Lewis LLP - Stamford Office
  • We readily conceded that our recent post concerning the Hooters waitress placed on “weight probation” was “not your typical weight discrimination” case. Here is a more typical one, which also addresses whether an employer may consider the “worst case scenario,” so to speak, in determining whether an employee is a qualified individual with a disability.  In Wilkerson v. Shinseki, the employer’s doctor concluded that the plaintiff, a 338 pound boiler plant operator with “largely uncontrolled and uncontrollable diabetes” who worked at the Cheyenne Veteran Affairs Medical Center, failed his annual fitness exam based on the doctor’s concern about plaintiff’s ability to perform challenging physical tasks. His employer reassigned him to a housekeeping position, which paid $9 per hour less than the boiler operator position.

    In affirming summary judgment for the employer on the Rehabilitation Act claim, the Tenth Circuit Court of Appeals held the plaintiff was not a qualified individual with a disability, noting that the VA’s safety guidelines excluded those with uncontrolled or poorly controlled insulin-dependent diabetes from boiler plant operator positions and that an operator must be able to react instantly to any dangerous situation with some degree of physical agility, which might include climbing ladders and going up and down stairs quickly. The Court said that the plaintiff “would pose a danger to himself and others should he fall from a ladder” and also cited the testimony of plaintiff’s supervisor that if a boiler were to explode, “the force would bring down the entire building that houses them.”

    The plaintiff minimized the dangers of his working as a boiler operator, noting that nearly all of his work was “light duty,“ that he climbed a ladder only occasionally, and had worked in this position for two years without incident.

    The Court held that an employer can “set standards not only for the mundane work but also for the exceptional” and can consider the “potentially disastrous effects” if plaintiff cannot respond to that exceptional situation safely and efficiently, so long as the need to perform in an emergency is a “realistic component of the job.” This is especially so, the Court noted, where the physical safety of others may be at risk.

    An employer seeking to ensure an employee can respond safely and efficiently to the exceptional situation with potentially disastrous effects should consider including such an explicit requirement in the job description. Challenges to such requirements are likely to come from individuals excluded from the position, whether due to a disability or any other reason. The Wilkerson case establishes that such requirements will be upheld so long as responding to the “worst case scenario,” so to speak, is a “realistic component” of the job.