Give Orr a Break

Posted on 6 October 2007. Filed under: ADA Court Cases, ADA Restoration Act of 2007, Advocacy |

These days, it seems that hard-working employees just can’t get a break.

There are two kinds of breaks that Stephen Orr ought to have gotten. One, he should have gotten a lunch break. He has a medical condition, diabetes, that requires him to eat his meals promptly on a regularly spaced schedule, or else he risks potentially serious medical problems.

At first, Orr did get the break he needed from Wal-mart–his regularly scheduled lunch break, that is. But then a new boss came in and said, “No more.” And Orr took Wal-Mart to court, accusing them of discriminating against him under the Americans with Disabilities Act (ADA) of 1990.

That’s where Orr should have gotten his second break. Orr’s case, at least from the evidence provided in the more detailed story further below, seems very strong. But the courts never once challenged Wal-mart to defend its actions. Instead, they focused on whether “diabetes” counted as a disability. They decided it didn’t–even though any one of the hundreds of congressmen and senators who helped write and pass the ADA would tell you that the ADA was very specifically meant to include diabetes, along with a wide range of other disabilities and chronic medical conditions including epilepsy, MS, psychiatric disabilities (e.g., depression, schizophrenia, etc), cancer, chronic heart problems, HIV/AIDS, deafness, blindness, mobility impairments, and so forth. (In response to a comment left in an earlier ReunifyGally blog post: as I understand it, the point is not necessarily to cover “serious” illnesses per se, but to cover chronic–i.e., on-going–medical conditions and disabilities that in some way impact the way you go about your daily routine in a signficant way.)

Unfortunately, decisions like the one affecting Orr have been too common in the past 17 years. Americans with disabilities are getting fed up, because it means employers are essentially allowed to discriminate against most Americans with disabilities nearly as much as they did before the ADA. It means employers have not been forced to face up to their mistaken assumptions about employing people with disabilities (for example, the insulting idea that hiring talented, hard-working, committed workers with disabilities is somehow a form of “charity” instead of an invaluable and highly desired contribution to the workforce that any employer ought to be enthused about taking on).

The failure of the courts to live up to the promise of the ADA also has meant that employers may reject disabled applicants out of hand instead of simply ASKING them, “So, this job would require that you make a couple of phone calls a day. How would you handle that part of the job?” In which case, a deaf applicant could simply explain, “Well, that’s what video relay is for. Video relay is blah blah blah [insert your favored description of video relay here]. And the best part is, if you already have computers with high-speed connection, then the web cam and software would be completely free for you.”

That’s where American legislators are hoping that the ADA Restoration Act of 1990 will help. The Restoration Act is meant to rescue the ADA from the courts by clarifying the originally intended definition of “disability” (it was already clear–or at least the legislators thought so because they were using the same definition as used in certain prior legislations–but the Restoration Act amplifies it). The Restoration Act is meant to force courts to look at whether employers are discriminating ON THE BASIS OF DISABILITY–and not on forcing alleged victims of discrimination to disclose highly personal and embarassing details about how their disability or medical condition affects them. In other words, courts are meant to handle cases dealing with alleged discrimination on the basis of disability in the exact same way that it usually deals with alleged discrimination on the basis of race or sex or other characteristics. No double-standards allowed.  After reading Orr’s story below, I hope you will consider taking a few minutes to contact your legislators or take other simple actions to help.
This story is taken from text prepared by the Consortium for Citizens with Disabilities (CCD).

State: Nebraska
Disability: Diabetes
Court: 8th Circuit 2003 [AR, IA, MN, MO, NE, ND, SD]

Stephen Orr

Stephen Orr is a pharmacist in Chandron, Nebraska, a town of 6,000 nestled in the rural northwestern part of the state. One of the few jobs for a pharmacist in the area is at the local Wal-Mart. Stephen interviewed there and was hired in early 1998. During his interview, he told his soon-to-be boss that he has diabetes and needs to take regular, uninterrupted lunch breaks. Stephen was authorized to take a 30-minute lunch break during his ten-hour work shift.

Doctors diagnosed Stephen with diabetes in 1986. He requires injections of insulin to manage the disease and wears a pump, attached to his body at all times, to maintain a regular course of insulin treatment. In order to keep his blood sugar stable, Stephen must follow a strictly regimented diet, monitoring what and when he eats. If he does not, he experiences episodes of either hypoglycemia (low blood sugar) or hyperglycemia (high blood sugar).

When his blood sugar levels are not in his target range, Stephen experiences:

• trouble talking;
• the need to urinate frequently;
• lack of physical strength and energy;
• coordination problems;
• difficulty reading or typing; and
• impaired concentration and memory.

Complications caused by fluctuating blood sugar levels can, and have, resulted in hospitalization.

After he started working, Stephen took lunch breaks as agreed, closing the pharmacy to eat without being interrupted. During this time, Stephen did not suffer any hypoglycemic attacks and performed his job well. No one complained about the pharmacy being closed for the half hour that Stephen was taking lunch.

When a new district manager took over, he told Stephen to stop closing the pharmacy, and to eat lunch when possible during down times in the pharmacy.

Stephen obeyed this order, but started having problems with low blood sugar because he was no longer able to control the times that he ate. Stephen told his new boss that, because of the no-lunch-break order, he had experienced several hypoglycemic incidents and that he needed to resume his noon lunch breaks to control his blood sugar. Stephen’s boss then fired him.

Stephen decided to challenge his firing and filed a claim against Wal-Mart under the ADA.

Wal-Mart responded that Stephen did not have a “disability” because Stephen was able to manage his diabetes with insulin and diet.

The courts agreed. Because the Supreme Court directed courts to consider “mitigating measures” in deciding whether an individual has a disability, it was found that Stephen did so well managing his condition that he was not disabled enough to be protected by the ADA. (27)

Wal-Mart’s refusal to allow Stephen to take a lunch break was never questioned.

Although Wal-Mart vigorously defended its refusal to allow Stephen a lunch break, Wal-Mart voluntarily changed company policy in 2000 to allow one-pharmacist pharmacies to close for 30 minutes at lunch because of “retention” problems.

(27) Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724 (8th Cir. 2002).

The introduction to CCD’s text is posted at ReunifyGally in the entry entitled “Real People, Real Stories: Why We Need ADA Restoration.”

Also see the first case story I posted, entitled “Thinking isn’t a Major Life Activity, Say Courts.”

The second case story is in the entry entitled “Where is Todd’s Day in Court?

The third case story is entitled “Qualified to Work = Disqualification for ADA Protection

Fifth, after this one, is entitled “Doing Good Work? You’re Fired!“.

The sixth is “Why Everybody Loses Without the ADA Restoration Act.”

The seventh is “A Hearing Woman, but a Deaf Story: Why We Need the ADA Restoration Act.

The eighth and last court case is “Unfair Precedent Ties Hands of Sympathetic Court: Why McMullin’s Case Highlights Need for ADA Restoration Act“.

________________________________________

I’m taking these stories from a 13-page file of case studies written up by the Consortium for Citizens with Disabilities (CCD); this file is available in both Word and PDF format.

CCD has compiled an excellent collection of materials on the ADA and on the ADA Restoration Act of 2007, so it’s well worth following their link to www.c-c-d.org/ada.

See my continually-updated list of blog entries from all over the web about the ADA Restoration Act of 2007, always available from the top navigation bar at “On the ADA Restoration Act.”

Also, don’t miss these links: One group of activists has posted a short list of simple ideas of things you can do to help get the Restoration Act passed. And do check out the ADA Restoration Blog for updates. Or browse through background information on the ADA Restoration Act. Or contact your legislators (just be sure to uncheck the box asking to be added to their action alert email list, unless you want to receive them).  Or, for another way to contact your legislators — a few minutes faster, but not quite as strong an impact — try this tool instead.

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4 Responses to “Give Orr a Break”

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[…] wrote an interesting post today on Give Orr a BreakHere’s a quick […]

[…] After this one, the fourth case story is entitled “Give Orr a Break.” […]

[…] The fourth case story is entitled “Give Orr a Break.” […]

No one has mentioned the Labor board which says any person who works 8 hours is entitles to a 20 minute break it does not specify whether it is a lunch break a pee break but only that it is a required break.


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