Legal E-Bulletin - December 2003

The Burden of Mitigating Measures

In Fraser v. Goodale (9th Cir. September 8, 2003), the United States Court of Appeals for the Ninth Circuit ruled that Rebecca Fraser had presented a genuine issue of material fact** on whether her diabetes substantially limited the major life activity of eating so she could proceed to trial. This case assuages some of the fears that people with diabetes cannot qualify for the protections of the Americans with Disabilities Act. Her employer, U.S. Bancorp, had refused to accommodate Fraser by not allowing her to eat at her desk. After making several requests for accommodation, she passed out due to a low blood sugar level and made a complaint to her superiors. She was subsequently fired.

In a twist to the Supreme Court’s mandate that mitigating measures must be considered in determining whether a disability exists, the Ninth Circuit considered the burden of the mitigating measure since it bears directly on the impact of the diabetes. The Ninth Circuit, in a case of first impression, recognized eating as a major life activity. The court cautioned that simply being on a diet was not enough to substantially limit eating, but that those that have disabilities “because of severe dietary restrictions” must be allowed protection under the ADA. The court recognized Fraser’s regimen as being “perpetual, severely restrictive, and demanding”. She must constantly and precisely monitor her eating, exercise, blood sugar, and other factors. The court noted that even doing these things is no guarantee that the measures will work to control the diabetes. “Simply having the means to control an illness does not make controlling the illness easy.”

This case, along with Lawson v. CSX Transp. Inc., 245 F.3d. 916 (7th Cir. 2001), confirms that people with diabetes may be protected under the ADA even in light of the Supreme Court’s demanding standard for proving that one has a disability. The recognition and use of eating as a major life activity cannot be stressed enough. Plaintiffs will probably have an easier time proving that their diabetes substantially limited their eating rather than a more indirectly related life activity such as thinking or caring for oneself. The cases also show that some courts are also willing to consider the burden that it takes to manage or mitigate an impairment. This analysis cannot only apply to diabetes, but can apply to any impairment whose severity is such that the mitigating measure is a burden.

 

**There was enough evidence in dispute for a jury to decide whether or not her diabetes qualified as a disability for the purposes the ADA.

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