Employment Briefs


Definition of Disability

  • Bernadotte v. New York Hosp. Med. Ctr. of Queens, 2016 WL 792399 (E.D.N.Y. Feb. 26, 2016).pdf
  • An emergency department technician alleged that she was terminated because of her health condition (diabetes), which causes her to experience impaired vision, chronic head pain and difficulty standing and walking for extended periods of time. The court denied the employer's motion to dismiss, holding that a reasonable jury could find that the plaintiff has a disability because the leg pain caused by her diabetes causes difficulty standing.
  • Gogo v. AMS Mechanical Systems, Inc., 737 F.3d 1170 (2013)
  • The Court of Appeals vacated and remanded the District Court’s dismissal of the employee’s complaint, where the employee alleges that his employer fired him because of his disability; vision and circulatory problems caused by high blood pressure, and therefore violated the ADA. The Court of Appeals held that the employee’s disabilities qualified under the 2008 amendments of the ADA and that his forty-five years of experience as a pipe welder illustrated he was qualified to perform the essential functions of his job.

Essential Job Function

  • Minnihan v. Mediacom Commc’ns Corp., 779 F. 3d. 803 (8th Cir. 2015).
  • A technician operations supervisor was required to drive each quarter to do a prescribed number of quality inspections at consumers’ home to review the quality of work done by the technicians under his supervision. The supervisor developed seizure disorder and was restricted from driving for six months in accordance with state law. The employer provided an accommodation, but could not indefinitely eliminate driving. The appeals court affirmed summary judgment for the employer on a wrongful termination claim. The court held that the employer was not required to eliminate driving because it was an essential job function.

  • Samson v. Federal Exp Corp., 746 F.3d 1196 (2014)
  • Samson brought suit against FedEx after they withdrew their offer of employment based on his medical examination which showed that he is a Type-1 insulin-dependent diabetic. The District Court in this case granted summary judgment, holding that Samson could not perform an essential function of the job (test-driving). Samson appealed and the Eleventh circuit reversed, holding that test-driving was not an essential function of the position since there were other employees who could perform the test drives and the need for testing was very minimal.

Reasonable Accommodations

  • The appeals court reversed the decision of the district court to grant summary judgment to the employer. The appeals court held that although a plaintiff usually has to request an accommodation to trigger the interactive process, he does not have to do so when the employer is unquestionably aware of the disability and has received a report from its own doctor recommending an accommodation. The employer’s doctor cleared the plaintiff to work if the company provided accommodations. The Court held that the company failed to engage in the interactive process because it rescinded the plaintiff’s job offer “almost immediately” after learning about his disability and without further investigation.
  • Cannon v. Jacobs Field Servs N. Am. Inc., 813 F. 3d. 586 (5th Cir. 2016)
  • Noll v. International Bus. Machs. Corp., 787 F.3d 89 (2d Cir. 2015)
  • The Court affirmed summary judgment for the employer. The Court held that an employer has not violated the ADA by failing to explore alternative accommodations preferred by an employee if it provided the employee with a reasonable accommodation. The ADA requires an employer to provide an effective accommodation – not the most effective accommodation.
  • Schaffhauser v. United Parcel Serv., Inc., 794 F. 3d 899 (8th Cir. 2015).pdf
  • The Court of Appeals affirmed summary judgment for the employer. The Court held that an employee who engages in misconduct and then learns he may be subject to disciplinary action cannot avoid punishment by informing the employer of a disability that allegedly caused the misconduct and then requesting the accommodation.
  • EEOC v. LHC Group, Inc. dba Gulf Coast Homecare, 773 F.3d. 688 (5th Cir. 2014).pdf
  • EEOC filed suit against LHC on behalf of an employee after she was terminated from her position as a field nurse due to a breakthrough seizure. Her doctor released her to return to work, but one month later, the employer fired her claiming the seizures made her a “liability”. The district court dismissed the case on summary judgment in favor of defendant. However, on appeal, the Fifth Circuit reversed summary judgment in part, finding that there was genuine issue of material fact about whether the employee was terminated because of her disability. Additionally, there was a dispute as to whether the driving duty could have been modified for her particular position (Team Leader).
  • EEOC v. Western Trading Co., Inc. 291 F.R.D. 615 (D. Colo. 2013).pdf
  • EEOC filed suit against Western Trading for failing to provide a reasonable accommodation to an employee with epilepsy and terminated the employee in violation of the ADA. A jury found that Western Trading terminated the employee because of epilepsy and awarded $24,000 in back pay, $20,000 for emotional distress, and $65,000 in punitive damages.
  • EEOC v. Baptist Health South Florida, et al., Case No. 13-21411-CIV-KING.pdf
  • EEOC filed suit against Baptist Health and Doctor’s Hospital for failing to accommodate a physician (general practitioner) with epilepsy by limiting her work hours to eight hours per day. She was eventually terminated. The case was settled through a consent decree, which included back pay and compensatory damages, required annual training to management and human resources and recruitment staff, with special emphasis on disability discrimination and modified work schedules as reasonable accommodation, and posting of a notice explaining the lawsuit and monitoring by the EEOC for a two-year period.
  • McMillian v. City of New York711 F.3d 120 (2013)
  • McMillian brought suit against his employer alleging that his employer’s response to his request for accommodations was insufficient and a violation of the ADA. McMillian requested a late arrival time since his medication for Schizophrenia make him extremely “drowsy” and “sluggish” in the morning. The District Court granted summary judgment for his employer and dismissed all of McMillan’s claims with prejudice, stating that arriving within one hour time frame is an essential function of the job. The Court of Appeals vacated and remanded the District Court’s grant of summary judgment for the City of New York, holding that there was a genuine issue over an essential function of the employee’s position. The court held that McMillian worked for many years with late arrivals with the City’s approval and the City’s flex-time policy implied that punctuality is not an essential job function.
  • EEOC v. AT&T Corp., 1:12-CV-00402-TWP, 2013 WL 6154563 (S.D. Ind. Nov. 20, 2013)
  • This matter went before the District Court on cross-motion from both parties for summary judgment. EEOC claims that AT&T violated the ADA for two reasons: discriminatory discharge and failure to accommodate. EEOC filed suit on behalf of a former AT&T employee who was diagnosed with a medical condition which required her to take intermittent and then extended leave under FMLA. The Court held that there was an issue of fact as to whether attendance is an essential job function, as well as to whether AT&T was on notice that the employee was seeking reasonable accommodations. The Court denied both motions for summary judgment.
  • Basden v. Professional Transp. Inc., 714 F.3d 1034 (2013)
  • Basden alleged that her former employer, Professional Transportation, Inc., (“PTI”) violated the ADA when it denied her request for 30 day leave and terminated her. The District Court found that Basden failed to show a prima facie right to the ADA or FMLA and granted summary judgment in favor of PTI. The seventh circuit affirmed this decision, stating that the employee failed to present sufficient evidence that she was able to perform an essential function of her job even with a reasonable accommodation. The court determined that a person whose disability keeps them from regularly attending work cannot perform their essential job function and therefore does not qualify under the ADA.

Reasonable Accommodations - Telework

  • EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015).pdf
  • EEOC filed suit on behalf of an employee who was a resale buyer for the defendant and sought a reasonable accommodation to telework because of her health condition. Summary judgment was granted to the employer. On appeal, the court affirmed summary judgment for the employer, holding that an employee’s request to telecommute up to four days per week was unreasonable because it would have removed at least one essential function for the job, which was regular on-site job attendance.

Temporary Agency

  • EEOC v. JES Personnel Consultants, Inc., dba Genie Temporary Service, N.D. Ill. No. 11 C 5117.pdf
  • EEOC filed suit against JES, alleging that the company refused to allow an employee to return to a temporary employment assignment because of epilepsy. The employee was placed at Clover Technologies. The employee experienced a brief seizure on his first day of work. Clover allowed him to continue working but asked for a doctor’s note clearing him to return the next day. The employee provided the note to JES, but JES never provided the note to Clover or otherwise advised the employee that the note was inadequate. Instead, the employee was not allowed to return and ultimately terminated. The case was settled through a consent decree which included a monetary settlement of $80,000 to the employee and his attorney.

Direct Threat

  • EEOC v. National Railroad Passenger Corp. dba Amtrak.pdf
  • EEOC filed suit against National Railroad Passenger Association, better known as Amtrak, for discrimination against a job applicant with epilepsy. Amtrak provided a conditional offer of employment (Machinist Journeyman position), but withdrew the offer after the applicant reported a history of epilepsy during a post-offer medical examination. Amtrak cited safety concerns as its justification for withdrawing the offer. The lawsuit was settled through a consent decree in August 2016. The applicant was awarded with compensatory damages and lost wages. Amtrak also agreed to implement a modified ADA policy and train its staff on hiring obligations and assessing for reasonable accommodations.
  • Equal Employment Opportunity Comm'n v. Beverage Distributors Co., LLC,​  No. 11-CV-02557-CMA-CBS, 2013 WL 6458735 (D. Colo. Dec. 9, 2013)​​​​​​ 
  • EEOC charges were filed after the defendant withdrew an offer of employment to an employee who worked for the company for four years and whose previous position was eliminated. The withdrawal was based on employee’s medical examination which indicated that he was legally blind and could be a “direct threat” unless reasonable accommodations were made. The EEOC alleged that the Defendant violated the ADA by using the results of the medical examination unlawfully. The court denied the employer’s defense that the employee failed to mitigate because the company failed to identify comparable jobs that the employee could have performed. The court also ordered the Employer to hire the employee as a Night Warehouse Loader and awarded the employee interest on back pay.
  • Brandt v. University of Colorado Hospital (D. Co. 2011)
  • Brandt was denied a position as a surgical technician with defendant hospital after disclosing her medical history of seizures. Brandt's seizures were infrequent and well-controlled with medication and she had been able to perform successfully in similar positions prior to her rejection. Defendant filed a motion for summary judgment raising safety-related arguments in support of the rejection and plaintiff filed an opposition brief.
  • Complaint
  • Plaintiff's Brief in Opposition to Summary Judgment Motion
  • EEOC and Fultz v. Rite Aid, 750 F. Supp. 2d 564 (D. Md. 2008) EEOC filed suit against Rite Aid, alleging ADA violations after the store terminated an employee with epilepsy based on concerns about safety risks related to his condition. The complaint alleged that Rite Aid failed to properly assess the employee's particular condition and failed to consider reasonable accommodations could have eliminated or reduced any such risks. The case was settled through a consent decree, which required Rite Aid to pay $250,000 in damages and attorney fees, to modify its policies to ensure ADA compliance regarding reasonable accommodations and individualized assessments of employees with disabilities, and to provide ADA training for managers.
  • Consent Decree
  • Plaintiff's Brief in Opposition to Summary Judgment

Medical Inquiries (Pre-Job Offer)

  • EEOC v. The Food Farmacy, Ltd. dba Foodworks, and J&T Enterprises, LLC dba Foodworks, Civil Action No. 13-cv-01438.pdf
  • EEOC filed suit against this grocery store chain alleging that the disability related questions were asked to a class of applicants before offering them jobs. Applicants were required to respond to a question on the application, “Do you have any health problems?” Applicants were also asked whether they had health problems or about medications during job interviews. The case was settled through a four year consent decree, which included a monetary settlement, prohibition of pre-offer disability related questions of applicants as well as termination of employees based on disability or perceived disability. The decree also included training to all employees and the posting of federal antidiscrimination laws.

Medical Inquiries

  • U.S. v. City of Baltimore (2014)
  • The Department of Justice settled a Title I discrimination case against the City of Baltimore Fire Department, concerning discriminatory hiring practices and policies. The case involved complainant who applied for a position as a fire dispatcher for the City of Baltimore Fire Department. After passing both the interview and testing portions of the application process, the complainant was subject to a pre-employment medical examination without a conditional offer of employment from the Fire Department. During the medical examination the applicant was asked several disability-related questions and ultimately was denied the fire dispatched position because the final reviewing physician deemed her “unfit” for employment due to a “longstanding medical condition”. The complainant previously worked as a dispatcher for the City of Baltimore’s office from 2001 to 2008 and her past medical records indicated that she has “no limitations for physical or other activities that may be required for employment”. The terms of the consent decree, include a payment of $65,000 to the complainant for compensatory damages and it also requires the city to adopt new practices and policies, including training all employees on the ADA and ensuring that the city’s contracted medical examiner is trained on the ADA’s requirements, in order to bring the city in compliance with the ADA. See the DOJ’s Press Release here.
  • EEOC v. Dillard’s Inc. 2012 WL 440887 (S.D. Cal. Feb. 9, 2012)
  • EEOC filed suit to get relief for Dillard’s employees who were required to disclose the nature of their medical conditions to be approved for sick leave. Employees were fired in retaliation for refusing to provide details about their medical conditions. Despite advisement from its doctors, Dillard’s continued this policy of making medical inquiries that were not job-related or consistent with business necessity. The case was settled through a three year settlement and consent decree, which included a monetary settlement to identified victims, the creation of a class action fund for unidentified victims, and revision of company policies and ADA training for supervisors and staff.
  • Blake v. Baltimore Cnty., Md., 662 F. Supp. 2d 417, 418 (D. Md. 2009).pdf
  • A police officer brought a lawsuit against Baltimore County, Maryland after a commanding officer ordered that he undergo a neurological test (EEG) to determine if he was fit for duty ten years after he experienced a single seizure and received clearance to return to work. The officer alleged that the testing was ordered in retaliation for his testimony in favor of a fellow officer who was forced into retirement because of epilepsy. The court awarded the officer $225,000 after a trial.
  • Plaintiff's Motion for Summary Judgment on Second Amended Complaint
  • Proposed Jury Instructions
  • Proposed Voir Dire

  • Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206, 1209 (11th Cir. 2010) The court of appeals reversed the trial court's grant of summary judgment to the employer and remanded the case. In this case, the plaintiff, who applied for a permanent position with the employer, filed suit alleging an improper medical inquiry, failure to hire due to a perceived disability and termination due to a perceived disability. The Epilepsy Foundation and EEOC filed amicus briefs in this case.
  • Defendant's Motion for Summary Judgment
  • Plaintiff's Response to Defendant's Motion for Summary Judgment
  • Defendant's Reply to Response
  • Epilepsy Foundation's Amicus Brief
  •  Opinion of the 11th Circuit Court of Appeals

Failure to Conduct Individualized Assessment

  • EEOC, et al. v. Georgia Power Co., et al. (N.D. Ga. 2011).pdf
  • EEOC filed suit against Georgia Power Company and Garney Construction Co. for filing to hire a job applicant with a history of epilepsy and failure to conduct an individualized assessment of applicant. The applicant had been seizure free for eight years while on anti-seizure medication. Garney, a contractor for Georgia Power, offered the applicant a job at its construction site. Garney required applicants to pass certain examinations including a DOT physical examination. The applicant could not pass the DOT physical examination because he took medication for epilepsy. Thus, Garney withdrew its job offer. Federal law does not require heavy equipment operators to pass a DOT physical exam. The case settled through a consent decree, which required monetary payment and training to employees to avoid future discrimination.

DOT Commercial Driving

  • Whitehead v United Parcel Service Inc.,  387 F. App'x 16 (2d Cir. 2010).
  • A truck mechanic was terminated by UPS because he could not qualify for a U.S. Department of Transportation medical certificate to drive trucks interstate. Such a certification is required to operate a "commercial motor vehicle," i.e., one weighing in excess of 10,000 pounds which is driven across state lines. DOT regulations provide that anyone with a history of seizures or who is on antiseizure medication is ineligible for the medical certification; however, DOT operates an exemption program concerning this requirement. During the course of litigation, it became clear that the position in question did not involve driving commercial motor vehicles in interstate commerce, and therefore, plaintiff did not need to possess a DOT medical certificate. DOT issued an opinion letter, addressing the facts of this case, indicating that interstate commerce is determined by the shipper's intent and that a package vehicle carrying no cargo that is test driven by the mechanic within one state (New York) is operated in "intrastate, not interstate, commerce." Accordingly, the driver of such a vehicle would not be obligated under DOT regulations to obtain a medical certificate. A confidential settlement was reached.
  • Complaint
  • Plaintiff's Memo in Opposition to Defendant's Summary Judgment Brief
  • DOT Opinion Letter
  • Russo v. Sysco Food Services of Albany LLC., 488 F.Supp.2d 228 (N.D. N.Y. 2007)
  • The issue before the court was whether an employer violated the ADA in denying a request for reassignment to a truck driver who had lost his commercial driver's license as a result of experiencing seizures, when the new positions sought apparently did not require driving. After losing his truck driver's license, SYSCO refused to place Mr. Russo in a position in the company warehouse because the employer's doctor found that he could not operate commercial vehicles or equipment unless he was seizure free for 2 years. Mr. Russo was also denied a position as a night time supervisor because there was a possibility that he might be required to drive.
  • Based on these findings of the company doctor, the court ruled that "SYSCO regarded plaintiff as unable to work in any job requiring the operation of trucks, forklifts, or any other company vehicle. Positions requiring the operation of all vehicles and heavy equipment constitute a class of jobs. Thus plaintiff has shown that SYSCO regarded his epilepsy as a substantial limitation on his ability to work. Therefore, as a matter of law, plaintiff is an individual with a disability." The court also found that there were questions of fact as to whether the positions sought required driving and/or whether Mr. Russo could safely perform those duties. These issues were deferred to trial.
  • Summary Judgment Brief of Plaintiff
  • Taylor v. USF-Red Star Express, Inc ., 2005 U.S. Dist. Lexis 3600 (E.D. Penn. March 8, 2005), affirmed, 2006 WL 3749598 (3rd Cir. 2006), cert. denied. The court refused to overturn a jury verdict awarding $159,000 to a dock worker whom a jury had found was improperly placed on leave in violation of the ADA, based on the employer's erroneous belief that the employee had epilepsy (which the employer believed presented an unacceptable safety risk in the position). In the Taylor case, plaintiff had two seizure-like incidents, and the employer placed him on extended leave, until he was able to produce a doctor's note clearing him to work. Judge Newcomer found that Taylor's seizures were brought on by his taking creatine, a nutritional supplement designed to enhance muscle growth, and that he did not have epilepsy. A jury awarded Taylor back pay, lost pension benefits and compensatory damages. Judge Newcomer upheld the awards to Taylor and also awarded attorney's fees to the plaintiff's attorneys. The court found that there were ample grounds for the jury's conclusions and denied the employer's motion for a new trial. Judge Newcomer found that Red Star mistakenly perceived Taylor as having epilepsy and being prone to seizures and to sudden loss of consciousness. The court found that if the jury believed these statements, they could easily have believed that defendant regarded plaintiff as being "substantially limited" in one or more major life activities (a requirement for protection under the ADA). The court also found that there was conflicting evidence on the question whether all persons in the plaintiff's position needed to drive a forklift and whether Taylor was in fact capable of driving that vehicle, but that the jury's determination in favor of the plaintiff must be given deference, as there was ample evidence on which the jury could have based its finding that Taylor was qualified to perform the job.
  • Decision on the merits of plaintiff's claim
  • Decision on attorney's fees
  • Brief of plaintiff
  • Document Production Requests -- addresses a broad range of accommodations issues
  • Proposed Jury Instructions
  • Morris v. Oldham County Sheriff's Department (Ky. State Court, unreported, 2006) This case involved the dismissal of a deputy sheriff who had experienced one seizure, while off-duty, after being seizure-free for 32 years, and who had been cleared to return to work by his neurologist. The examining physician concluded that plaintiff's history of seizures might create a "slight" increased risk of seizures during stressful situations. The court denied the defendant's motion for summary judgment. In the order overruling the defendant's motion, the Judge found that the plaintiff's epilepsy is a disability covered under the ADA, even though associated physical impairments can be mitigated by medication. The parties reached a confidential settlement
  • Plaintiff's Brief in Opposition Defendant's Motion for Summary Judgment
  • Rodriguez v. ConAgra Grocery Products Company, 2005 U.S. App. Lexis 25042 (5th Cir. Nov. 14, 2005) The court of appeals reversed the trial court's grant of summary judgment to the employer and granted plaintiff's motion for partial summary judgment, finding that ConAgra improperly denied a laborer position to an individual with diabetes. The appeals court found that ConAgra regarded the individual as substantially limited in the major life activity of working (and therefore he was covered under the ADA), based in part on evidence showing that the human resources manager believed that the plaintiff was unable to perform the job because of the risk of dizziness and blackouts and that there were essentially no manual labor jobs for which he would be qualified. The plaintiff was denied the position when defendant's doctor determined he was unqualified for a position at a manufacturing plant based on a cursory examination and the results of a urine glucose test. The decision reaffirms the importance of individualized assessments of an employee's capabilities and limitations.
  • Appellant's Brief
  • Amicus Brief of the American Diabetes Association
  • Amicus Brief of EEOC
  • Jibben v. United Parcel Service, CV No. S-02-0039-DAE (D. Nev. April 14, 2004) In this case, the court denied UPS's motion for summary judgment, finding that there are material issues of fact which must be resolved at trial as to whether plaintiff's epilepsy amounts to a covered disability under the ADA. Similarly, the court found whether the plaintiff's condition prevented him from performing an essential function of the job (working 9.5 hours a day as a supervisor) also must be resolved at trial. In reaching its decision on the coverage issue, the court found that Mr. Jibben experiences nocturnal seizures once or twice a month, which are not totally controlled by medication. The seizures last approximately 30 seconds to two minutes, during which Mr. Jibben is unable to walk, speak, hear or work. Following his seizures, he experiences tiredness, shakiness and difficulty concentrating. Based on these findings, the court ruled that there was a genuine issue of material fact as to whether Mr. Jibben's epilepsy substantially limits a major life activity. Regarding Mr. Jibben's ability to perform the essential functions of the job of supervisor for UPS, there was conflicting evidence as to whether the position of supervisor actually required Mr. Jibben to work at least 9.5 hours a day and work a varied and flexible schedule (working beyond 45 hours arguably would be harmful to Mr. Jibben's condition).
  • Amicus Brief (Epilepsy Foundation)
  • Jibben decision
  • Equal Employment Opportunity Commission v. Overnite Transportation Company, 2006 WL 2594479 (S.D. Ohio 2006)
  • EEOC alleged in its complaint and motion for summary judgment against Overnite that the company follows a blanket policy that excludes persons with epilepsy and/or diabetes without individually assessing an individual's ability to perform the essential functions of the job with or without reasonable accommodation. The Commission filed its suit on behalf of two individuals with epilepsy who sought positions with Overnite as dockworkers. The court issued a decision denying the defendant's motion for summary judgment, finding that the individuals on whose behalf the action was filed may have been screened out from the dock worker position without adequate consideration as to whether they posed a direct threat. The court concluded that the employer has the burden of demonstrating there is a direct threat, and that Overnite had not clearly done so. The case was settled in 2008 through a Consent Decree.
  • EEOC v. Overnite - Consent Decree.pdf
  • EEOC v. Northwest Airlines, No. 1-705 MJD/JGL (D. Minn. Dec. 30, 2004) In 2004, the EEOC reached a favorable settlement with Northwest Airlines in a case challenging a similar exclusion policy. In this case, the U.S. Equal Employment
  •  Opportunity Commission and Northwest Airlines, Inc. reached a settlement of a lawsuit under the ADA which will ensure that persons with epilepsy (and insulin-dependent diabetes) who apply for various positions with the airline will not be unfairly denied those positions.
  • Northwest had allegedly relied on a company-wide policy of automatically disqualifying applicants for positions of cleaners or equipment service employees if they had seizure-related disorders or other disabilities that pose a risk of loss of consciousness, no matter how remote the risk was. A key element of the agreement is that Northwest will conduct an individualized assessment of the current ability of persons to safely perform these positions, with or without reasonable accommodation. Northwest will also provide a settlement fund of $510,000 for distribution among 28 individuals for whom the EEOC was seeking
  •  relief. The EEOC's brief argued that Northwest needed to abandon its zero tolerance policy -- that discriminated against persons with epilepsy and diabetes -- in favor of a policy of individualized assessment of an applicant's ability to perform the essential functions, with or without reasonable accommodations, of the position sought.


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