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Employers would be wise not to prejudge a potential employee’s medical condition and use that as a reason to rescind a job offer, according to a recent 5th U.S. Circuit Court of Appeals opinion. Such assumptions run afoul of the Americans With Disabilities Act and may lead to rulings that employers have discriminated against potential employees as a matter of law, wrote Judge Jacques Wiener in Nov. 14′s Rudy Rodriguez v. ConAgra Grocery Products Co. The appeal involves Rudy Rodriguez, a temporary employee who was offered a permanent position by ConAgra Grocery, only to have the offer rescinded, because the employer believed Rodriguez’s diabetes was uncontrolled. According to the opinion, Rodriguez was diagnosed with Type II diabetes in 1997. Diabetes is a condition in which the body has difficulty eliminating sugar (glucose), and the illness can cause long-term health problems. In 2002, Rodriguez was placed by a temporary staffing agency at the Fort Worth Ranch Style Beans factory, a plant owned by ConAgra, in Texas. Rodriguez worked as a manual laborer unloading trucks and lifting heavy sacks of beans. Weeks after he started at the factory, Rodriguez was offered a permanent position, contingent on passing a background check, a drug screen and a physical examination, according to the opinion. Rodriguez went to a private clinic that contracts with ConAgra to perform physical exams. A urinalysis test revealed that Rodriguez had an elevated concentration of glucose, according to the opinion. Based on that information, and on the fact that Rodriguez could not remember the name of the medication he took to control his diabetes, a clinic doctor concluded that Rodriguez’s diabetes was “uncontrolled.” On a medical form submitted to ConAgra, the doctor wrote that Rodriguez was “not medically qualified” for the position at the plant because of his uncontrolled diabetes. ConAgra rescinded the job offer, saying Rodriguez failed the physical exam, according to the opinion. Rodriguez filed an employment discrimination suit against ConAgra in state court, which ConAgra had removed to federal court. Both parties filed summary judgment motions, taking opposite positions on whether Rodriguez had suffered employment discrimination. In 2003, U.S. District Judge Terry Means of Fort Worth granted ConAgra’s motion for summary judgment and dismissed the suit. Means ruled that Rodriguez failed to present any evidence that ConAgra withdrew his job offer because he has diabetes. Rather, ConAgra withdrew the job offer because Rodriguez’s diabetes was uncontrolled, the judge ruled. That, Means determined, was a “distinction with difference,” and other courts have found that a plaintiff’s failure to control an otherwise controllable illness does not give rise to an employment discrimination claim. The 5th Circuit reversed and rendered Means’ decision, finding that the clinic doctor did not have enough information to determine that Rodriguez’s diabetes was uncontrolled and ConAgra did not have enough information to conclude he was unable to perform the job. Making assumptions about the disease and refusing to hire an employee based on those assumptions is a violation of the Americans With Disabilities Act, the court concluded. “To start with, Rodriguez’s offer was withdrawn on the basis of ConAgra’s blanket determination that it would not hire any diabetic who its physicians characterize as ‘uncontrolled,’ regardless [of] whether the particular diabetic might be able to perform the essential functions of the job at issue,” wrote Wiener, joined by Judges Patrick Higginbotham and James Dennis. “Such a policy not only ignores the ADA’s mandate that employers consider an impaired applicant on the basis of his actual abilities, but it also empowers ConAgra to make an end-run around the ADA’s prohibition of discrimination,” Wiener continued. When assessing people with disabilities, employers must treat potential employees as individuals and not defer to a physician’s opinion without first pausing to assess the object reasonableness of the physician’s conclusions, the court concluded. DON’T JUMP TO CONCLUSIONS Don Uloth, a Dallas lawyer who represents Rodriguez, is pleased with the 5th Circuit’s decision, which will go a long way toward preventing employers from using bad assumptions about a job applicant’s medical condition to deny a job. “They knew he could do the job,” says Uloth, a partner in Uloth & Peavler, pointing to Rodriguez’s five weeks of successful temporary employment with the company. But that all changed when ConAgra made some broad generalizations about diabetes, Uloth maintains. “He doesn’t have Type I, and he didn’t take insulin. His is Type II, and the risks associated with his type of diabetes are long-term,” Uloth says. “It can damage systems in the body, but it takes years. It’s not going to cause you to suddenly injure a co-worker.” Rodriguez found other employment with a printing company and hopes to settle his case with ConAgra, Uloth says. Arthur Carter, a partner in Dallas’ Haynes and Boone who represents ConAgra, did not return two telephone calls seeking comment before presstime on Nov. 23. Daniel Kohrman, a lawyer for the American Association of Retired Persons who filed an amicus brief in the case, also says the opinion will protect the rights of disabled employees and older employees with medical problems. “Although it did not cut it out all together, it weakened the notion that you can deny someone a job because they are not doing all a doctor or an HR manager thinks they could be doing to manage their condition,” Kohrman says. “The courts have said you have to take workers as they come. If they take medicine, you have to look at that.” “HR people are not supposed to be like the proverbial mom that is worried that their kids are not behaving like the perfect patient,” Kohrman says. Michael Maslanka, a partner in the Dallas office of Ford & Harrison who defends companies against employment discrimination suits, says the decision makes sense. “You simply can’t jump to conclusions,” Maslanka says. “That’s what the law is about. It’s about treating someone like an individual — that’s it.”

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