Diabetic is substantially limited in the major life activity of eating.
Employer has burden of proving employee is a "direct threat."
Branham v. Snow, 392
F.3d 896 (7th Cir. December 17,
2004) - This is a Rehabilitation Act action. Gary Branham has Type I
insulin-dependent diabetes. He must check his blood sugar level four to five
times a day. He controls his blood sugar through the use of insulin and
through diet and exercise. Branham has never experienced a severe
hyperglycemic reaction (abnormally high blood sugar level) or a severe
hypoglycemic reaction (abnormally low blood sugar level). Branham works for
the IRS as a revenue agent. In 1999, he sought the position of "Criminal
Investigator - Treasury Enforcement Agent." Branham was tentatively selected
for the position subject to the satisfactory outcome of a physical
examination. But the doctor concluded that Branham was not qualified for the
position because the job requires the ability to work irregular hours,
respond to unanticipated requests, and react in a timely and appropriate
manner in an emergency or crisis. The doctor opined that if Branham
performed these essential job functions, he would likely suffer subtle
and/or sudden incapacitation, which would place Branham and others at an
extreme risk of safety that would be unacceptable. But Branham's own
physician concluded that he could perform the duties of Criminal
Investigator. Branham filed suit and the district court granted summary
judgment on behalf of the IRS. On appeal, the Seventh Circuit reverses and
remands. First, the Court holds that a trier of fact could rationally find
that Branham is disabled with respect to the major life activity of eating
based upon his diabetes and the treatment regimen that he must follow.
However, the Court does not find that the IRS regarded Branham as disabled.
Next, the IRS argues that even if Branham has a disability, he is a direct
threat to the health or safety of others. The Court first decides that the
employer has the burden of proof on this issue. Direct threat has been
defined as a significant risk of substantial harm to the health or safety of
the individual or others that cannot be eliminated or reduced by reasonable
accommodation. The key inquiry is whether the risk is significant. The
assessment of risk must be based on medical or other objective evidence and
the determination that a significant risk exists must be objectively
reasonable. The factors that the Court considers in determining whether an
employee is a direct threat are: (1) the duration of the risk; (2) the
nature and severity of the potential harm; (3) the likelihood that potential
harm will occur; and (4) the imminence of potential harm. The Court then
analyzes these four factors and determines that a reasonable finder of fact
could determine that Branham was not a direct threat and therefore he was
qualified for the position of Criminal Investigator. As a result, the Court
reverses and remands for further proceedings.
