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COURT HOLDS THAT EPILEPSY IS NOT A DISABILITY UNDER THE ADA AND EMPLOYER IS NOT REQUIRED TO IGNORE SENIORITY SYSTEM TO GIVE PREFERENCE TO DISABLED WORKER

           Employers are often confronted with situations where an employee with a serious illness seeks an accommodation under the Americans With Disabilities Act (hereinafter “ADA”) that would not be permitted under long standing company personnel policies. In these situations,the employer must make two important decisions. The employer must first determine whether the employee’s medical condition rises to the level of a disability under the ADA. If the employee is disabled,the employer must next decide whether to provide the employee with an accommodation that would violate a company personnel policy.Recently, the U.S. Court of Appeals for the 4th Circuit provided guidance on this issue when it held in EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir., 2001), that the plaintiff’s epileptic symptoms did not constitute a disability under the ADA. The court held further that the ADA does not require an employer to abandon or deviate from a legitimate and non-discriminatory company policy in order to accommodate a disabled employee.Vanessa Turpin began working for Sara Lee in 1989. In 1992, she began experiencing seizures and was diagnosed with epilepsy. Although Ms. Turpin was given medication, she continued to experience both nocturnal and daytime seizures once or twice a week. Ms. Turpin was generally unaware that she was having a nocturnal seizure as it occurred. Such seizures were characterized by shaking, kicking, and salivating. Ms. Turpin also experienced daytime seizures that were less severe and lasted several minutes.During a daytime seizure, Ms. Turpin began shaking, her face took on a blank expression, and she became unaware of and unresponsive to her surroundings. She could feel a seizure about to start and would sit away from her work area until it passed. When a seizure was over, she was able to resume her normal work duties. She experienced four or five of these seizures during the period at issue.In 1996, the plant where Ms. Turpin was working was shut down and she was transferred to another Sara Lee plant in Florence, South Carolina. In 1997, Sara Lee shut down its plant in Hartsville,South Carolina. Sara Lee offered the workers from its Hartsville plant the opportunity to transfer to the Florence plant. Under Sara Lee’s seniority policy, which was in effect for thirty years, the Hartsville employees would retain their seniority and thus were entitled to displace the current workers at the Florence plant. A senior Hartsville employee with twenty years more seniority than Ms. Turpin requested and was given Ms. Turpin’s place on the first shift.Ms. Turpin requested to stay on the first shift because her doctor told her that transferring shifts would cause a disturbance in her sleep pattern and worsen her seizures. Sara Lee’s doctor disagreed,stating that as long as she worked on a non-rotating shift, there would be no disturbance in her sleep patterns. The company therefore elected to uphold its seniority policy and provided Ms. Turpin with three standard alternatives provided for under this policy. Ms. Turpin chose a severance package, one of the options provided under the policy. She then filed a charge for discrimination with the EEOC.The EEOC found cause and filed a complaint against Sara Lee in February of 1999.Sara Lee moved for summary judgment, which the District Court granted. In granting Sara Lee’s motion, the court held that Ms. Turpin was not disabled within the meaning of the ADA and that even if she was disabled,Sara Lee satisfied its burden of reasonable accommodation as required by the ADA.The EEOC appealed to the United States Court of Appeals for the 4th Circuit which affirmed the trial court. The Court of Appeals began by analyzing whether Ms. Turpin was “disabled” under the ADA.The court first noted that to be disabled under the ADA, an individual must have a physical or mental impairment that substantially limits one or more major life activities. Although the Court recognized that epilepsy could certainly be a disability under the ADA, it concluded that Ms.Turpin’s specific form of epilepsy did not rise to the level of a disability that “substantially limited”her major life activities. The Court concluded that the phrase “substantially limits” provides the threshold requirement that excludes minor impairments from coverage of the ADA.The EEOC argued that Ms. Turpin was substantially limited in her major life activities, such as sleeping, thinking, and caring for herself. The EEOC argued that due to her nighttime seizures, Ms. Turpin was unable to sleep well at night. She also had a tendency to forget things,such as the location of her doctor’s office and when to take her daily dose of medication. Additionally, the EEOC pointed out her inability to care for herself during and sometimes after her seizures, at which time her husband generally had to assist her.The EEOC asserted that Ms. Turpin’s seizures could be established as a disability under an “intermittent manifestation” theory of disability which was discussed in Vande Zande v. Wisconsin Dept.of Admin., 44 F.3d 538 (7th Cir. 1995). The Court distinguished Vande Zande,however, because, in that case, the plaintiff’s true disability was paralysis and not the intermittent manifestation of pressure ulcers.The Sara Lee Court refused to hold that an individual was disabled for purposes of the ADA simply because that individual suffers from an occasional manifestation of an illness because doing so “would expand the contours of the ADA beyond all bounds.” The Court also determined that the EEOC failed to prove that Ms. Turpin was substantially limited in her ability to perform major life activities. The Court noted that under the EEOC’s own regulation, a significant restriction must, “be compared to the condition, manner, or duration under which the average person in the general population can perform that same major activity.” The Court found that the EEOC’s evidence failed to show that Ms. Turpin’s “impairments” were different from the average person. For example, the Court noted that although Ms. Turpin did not sleep well, many individuals fail to sleep through the night. Ms. Turpin herself frequently slept through many nights either when she did not experience a seizure or, if she did, would not remember having it. The Court also stated that Ms. Turpin’s forgetfulness did not rise to the level of a substantial limitation because many adults in the general population also suffer from a tendency to forget things. Finally, the Court disagreed with the EEOC’s assertion that Ms. Turpin was unable to take care of herself. Although she required her husband’s assistance at times, his assistance was only required during or occasionally after her seizures, which were themselves infrequent and mild.The Court noted that her condition did not inhibit her ability to drive a car,care for her son, or perform her job effectively.The Court then went on to analyze whether Sara Lee satisfied its duty of reasonable accommodation had Ms. Turpin actually been disabled. According to the Court, the ADA requires employers to make “reasonable accommodations” for disabled employees, unless the accommodations “would impose an undue hardship on the operation of the business.” The Court acknowledged that other Circuit Courts have found that “reasonable accommodation” did not mean an employer had to abandon legitimate and non-discriminatory company policies.whether the employee’s medical condition “substantially limits” a major life activity.The Court analyzed Sara Lee’s seniority policy and determined it was both legitimate and non-discriminatory. The court noted as significant that Sara Lee had maintained and adhered to the policy for thirty years. The policy was well established and all employees were aware of its operation. It always applied to situations such as in-plant transfers, priorities for shift-changing,and layoff and recall of employees. The Court concluded that the seniority policy was a neutral and non-arbitrary way to resolvethese various issues in the workplace.While the ADA allows a disabled employee to transfer to a vacant position, the Court emphasized that it does not mandate that the employer remove another employee from a particular position in order to accommodate a disabled employee. It reasoned that if Ms. Turpin were allowed to bypass Sara Lee’s seniority policy, she would in essence be given special treatment since she would have been allowed to retain her position thereby displacing a co-worker with twenty more years of seniority. The Court made it clear that the ADA speaks in terms of accommodations, and not exceptions to an otherwise legitimate employer policy. Therefore, according to the Court, the ADA does not grant a disabled employee the right to supersede a long-standing, legitimate, and non-discriminatory company policy. To require an employer to deviate from its company policy to accommodate disabled employees would not only disrupt the legitimate expectations of other employees, but it would also penalize those employees who are free from disabilities. Thus, the Court determined that Sara Lee satisfied the reasonable accommodation requirement simply by offering Ms. Turpin the options normally available under the seniority policy.The Sara Lee case essentially followed a number of recent federal court decisions that have held that the issue of whether an employee is “disabled” underthe ADArequires a close look at the facts of each case to determine  whether the employee's medical condition "substantially limits" a major life activity.The mere fact that the plaintiff has a serious medical condition, such as epilepsy, is not enough to qualify the employee as disabled. The employee’s restrictions must substantially hinder her ability to perform major life activities as compared to the average person. Accordingly, an employer cannot determine whether an employee is disabled based solely on the nature of an employee’s medical condition. The employer must look closely at the effect the medical condition has on the employee.The Sara Lee case also reinforces the principle that the ADA’s reasonable accommodation standard does not require an employer to disrupt its legitimate and nondiscriminatory company policy in order to accommodate a disabled employee. The Sara Lee Court concluded that to hold otherwise would convert the statute into a mandatory preference statute, inconsistent with its underlying non-discriminatory aim. Thus, an employer may refuse to provide an accommodation that would be inconsistent with the employer’s existing personnel policies. In this regard, the company’s position  will be strongest if the company’s policy is in writing, has a legitimate non-discriminatory purpose, and has been uniformly enforced for a number of years.