Defining Disability

When an African American man gets passed over for a promotion because of his race, or a woman isn't hired because of her sex, either of them may sue for discrimination. No one questions the basis of their claims. But for people with diabetes, epilepsy, multiple sclerosis, muscular dystrophy, and many other conditions, the Americans with Disabilities Act was being interpreted to mean that their conditions were not disabilities. Their cases were dismissed.

Of course, many people, especially those who have diabetes, would hardly consider the disease a disability. For example, Griffin, a trial lawyer from Victoria, Texas, was among the first legal volunteers with the American Diabetes Association to take on discrimination cases and is now vice chair of the Association's board of directors. No one who knows him would call him "disabled." But he does have diabetes. And as a lawyer, he knows that "disability to people means one thing, and disability to the law means something else." If you don't meet the legal definition of disability, then it is lawful to discriminate against you because of your diabetes.

John Griffin was among the first American Diabetes Association legal volunteers to take on discrimination cases.

After the Sutton decision, courts continued to narrow the scope of the Americans with Disabilities Act. In 2002, the Supreme Court ruled that to have a disability, a person must have a condition that severely restricts key daily activities. As a result, "people had to reveal intimate details [about their lives], like how they engage in sexual activity," says Alexandria Finucane, vice president of legal and government affairs at the Epilepsy Foundation.

Employment discrimination lawyers and advocates grew increasingly frustrated as they sought legal remedies for people facing discrimination. "The civil rights laws were not intended to be this huge sifting mechanism that allowed just a few to argue discrimination," Kohrman says. "The point was to identify groups who often experience discrimination and give them a way to fight it."

For people with diabetes, discrimination sometimes comes at the hands of employers who are just plain misinformed. A manager or human resources staffer may incorrectly assume that all people with diabetes are a safety risk. Employers may be concerned that hiring someone with diabetes will increase their health insurance costs. "Some employers … think that if they make exceptions [for employees with diabetes], they're opening the barn door," says Kohrman. "But that isn't true."

Fighting employment discrimination can be stressful and costly. After the federal Equal Employment Opportunity Commission or a state fair-employment agency reviews a case and grants the right to sue in court, the ensuing process often lasts for years. For many people, the legal costs are prohibitive. While hundreds of people turned to the American Diabetes Association for help with discrimination cases, handled by attorneys like Griffin and Kohrman, the cases were so hard to win that many other lawyers didn’t want to take them on. "The American Diabetes Association developed legal arguments and medical support, we taught seminars, and we organized a network of more than 600 lawyers willing to work on diabetes discrimination cases," says Shereen Arent, executive vice president for government affairs and advocacy at the Association. "When we were able to work closely with lawyers and experts, we had a great deal of success. Still, it took an enormous amount of work and resources to win these cases. Many people were too discouraged to even try to fight."