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AFL Attorneys Represent Workers Challenging Disability Discrimination

In a case addressing employment rights of persons with one of the most prevalent diseases affecting older people, three older employees represented by lawyers including AARP Foundation Litigation (AFL) reached agreement with Coach USA on a new policy concerning its drivers with diabetes, several of whom sued Coach when the firm suspended them for having non-insulin-treated “type 2” diabetes. The new policy completely revises criteria for driver suspensions, in ways that would have prevented all or most of the suspensions of the three drivers who sued.  Coach and the driver reached an amicable settlement of the suit under New Jersey anti-discrimination law by relying on sound science, with input from the American Diabetes Association (ADA).

Background

Kaleem Muhammad, Anthony James, and Walter Kautz, tour bus drivers for Coach USA, a large transport firm with more than a thousand drivers and operations in 16 states, all have “type 2” diabetes, a condition common among people over age 50 and shared by more than 20 million Americans. Like most persons with their condition, none of the three are insulin-treated, the hormone that regulates sugar levels in the body, and which a relatively small share of people with diabetes, just a few million, need to take because their bodies no longer produce any or enough.  Instead, the three plaintiffs each treat their diabetes with oral medication.  The same is true of Warren Bostic, another Coach driver with diabetes who sued Coach (in federal court, in Illinois), based on claims denied by the company, that Coach denied him a driver position due to his diabetes.

Muhammad, James and Kautz  each was suspended for testing positive for  having sugar in their urine, when they provided Coach  a sample in the course of a medical exam the company, and the federal government, requires its drivers to undergo periodically. At the time of their suspensions each otherwise was in good health and had worked for Coach for more than seven years, compiling sound employment records.  N.J. courts twice determined that Coach identified no concrete evidence that any of the three drivers posed a risk to public safety.

Coach ordered each of these drivers, as part of its “diabetes protocol,” to take leave from their work without pay. Coach argued that its actions were a legitimate effort to assure safe operation of motor vehicles. The drivers argued that Coach overreacted and violated N.J.’s Law Against Discrimination, which prohibits discrimination on the basis of disability (and in Bostic’s case, violated federal anti-discrimination laws). Muhammad, James, and Kautz sued in September 2009, seeking lost wages, damages for discrimination, and an order prohibiting Coach from suspending them from work again based on urine and blood sugar results.

Because insulin levels can affect consciousness, the U.S. Federal Motor Carrier Safety Administration (FMCSA) closely regulates insulin use by interstate commercial drivers.   However, the FMCSA does not closely regulate drivers with diabetes who do not take insulin, because those drivers have a much lesser likelihood of incurring dangerously low blood sugar than drivers tasking insulin. The FMCSA also does not closely regulate elevated blood sugar levels in drivers with diabetes, because evidence of safety risk is much less related to such conditions.

The new policy agreed on by Coach and the plaintiffs in both the Muhammad and Bostic cases retains numerical criteria for assessing drivers with non-insulin-treated diabetes.  But in no event are drivers suspended or rejected for hiring based on a single test result, without the ability to provide additional medical and other evidence demonstrating their ability to manage their diabetes and to drive safely.  AFL, the ADA and Coach USA all are hopeful the new policy can provide a model for other transportation firms with employment policies concerning employees with diabetes that do not as carefully employ sound science and sensitivity to safety.

AFL attorneys represented the plaintiffs in conjunction with local counsel Robert Hermann and Glen Savits, and disability law expert Gregory Paul.

What’s at Stake

The successful resolution of this case has far-reaching implications for older workers. The incidence of diabetes increases dramatically with age. More than half of the 26 million Americans estimated to have diabetes are over age 60, and of people age 65 and above nearly 20% have diabetes of some type – most, like the plaintiffs in the two cases, treat their condition with oral medication, rather than insulin.  Moreover, many other older workers have chronic conditions and/or disabilities other than diabetes that may subject them to difficulties at work due to employers who rely on outdated or uninformed scientific or medical criteria in evaluating such workers’ ability to do the job.

Case Status

Muhammad v. Stagecoach and Bostic v. Coach USA (in N.J. Superior Court and the U.S. District Court for the Northern District of Ill. respectively) both were settled and dismissed in January, 2014.