Irvine, California (PRWEB) October 18, 2011
On September 27, 2011, Ryan O’Donnell of Dana Point, filed a lawsuit in Orange County Superior Court (O’Donnell v. Orange County Fire Authority, Leslie Israel, D.O., et al., Case No. 30-2011-00511479) against the Orange County Fire Authority (OCFA) and Leslie Israel, D.O., alleging recent, unlawful acts of discrimination committed on their behalf in violation of the California Fair Employment and Housing Act (FEHA). His Complaint alleges that OCFA recruited O'Donnell earlier this year and granted him entry into the Firefighter Trainee Program. O’Donnell contends OCFA then later attempted to retract their offer and deny his acceptance, based solely on opinions by Leslie Israel, D.O., of the UCI Center for Occupational and Environmental Health, for a policy of blanket exclusion towards O'Donnell after having learned that O'Donnell is a person with a history of controlled diabetes. According to Newport Beach Employment Attorney Russell J. Thomas, Jr., who represents O'Donnell in this case, the automatic exclusion of anyone with a history of any type of diabetes from employment with OCFA is a violation of the California antidiscrimination law- known as the California Fair Employment and Housing Act- which bans employers from committing discriminatory acts against the disabled.
In his Complaint for unlawful employment discrimination, O’Donnell claims he received an offer of employment from the Fire Authority and was granted entry into the OCFA Firefighter Training Program earlier this year. This offer was formally extended to O’Donnell in a letter dated May 2, 2011, in which OCFA Human Resources Director Zenovy Jakymiw stated: “This letter confirms an offer of employment from the Orange County Fire Authority (OCFA) for the position of firefighter trainee. This offer of employment is contingent upon: 1) Passing a pre-employment physical examination; and 2) Successfully completing the 18-week fire academy (pass/fail).”
O’Donnell charges the discrimination began when he was independently evaluated during the pre-employment physical examination by Leslie Israel, D.O., of the UCI Center for Occupational and Environmental Health, specifically, regarding his history of controlled diabetes. Israel, whom is not a medical doctor, does not appear to possess any expertise with regard to evaluating diabetes cases, according to Thomas. According to O’Donnell, while OCFA was assured by all of O’Donnell’s treating physicians that his diabetes would not conflict with the occupational duties of a firefighter, Israel refused to grant medical clearance to O’Donnell. Instead, she cited a guideline issued by the National Fire Protection Association, which she interpreted as barring anyone with a history of diabetes from employment as a firefighter. The American Diabetes Association has criticized this NFPA standard as overly restrictive and discriminatory.
In a report from the Committee on Fire Service Occupational Medical and Health, the American Diabetes Association has asserted that “The NFPA’s current Standard 2-3.3 provides for ‘Category A’ medical conditions under which an individual cannot be medically certified to serve as a firefighter. Standard 3-16.1 makes diabetes ‘which is treated with insulin or an oral agent and where there is a history of one or more incapacitating episodes of hypoglycemia’ a Category A condition.
“Although this is not technically a blanket ban of anyone who uses insulin or oral medication, it is overly restrictive as a protocol”, says Thomas. Standard 3- 16.1 is a permanent bar with no time limit. This standard would forever ban someone from firefighting, even if that person only experienced one incident of severe hypoglycemia while an infant. “Such an incident would be useless in determining whether that person is able to avoid incapacitating hypoglycemia today - as an adult, while awake, and with the implementation of today’s current diabetes management tools. As such, the Standard presently in place ignores current, relevant medical knowledge about the risks of diabetes, does not take into account the individual experiences of people with this condition, and establishes unreasonably restrictive policies.”
O’Donnell’s lawsuit presents allegations that OCFA authorized Israel, who appears to have virtually no hands-on experience dealing with individual diabetic cases, to prevent O’Donnell from employment with the Fire Authority based upon a stereotypical judgment that anyone with any history of diabetes was, for that reason alone, unfit for employment with OCFA. “Under current law, employers are required to make an individualized assessment as to whether a disabled person can perform the essential functions of a job,” says Thomas, “and blanket exclusions from employment for persons with a particular disability are almost always illegal.”
According to Thomas, a blanket exclusion from employment for people with disabilities is inconsistent with current law. California law barring discrimination in employment, FEHA, has recognized diabetes as a disability since 2002, when the California legislature added Section 12926.1 to the California antidiscrimination law. Further, Congress amended the Federal Americans with Disabilities Act in 2008 to expand the definition of disability under the Federal Act. The United States Equal Employment Opportunity Commission issued regulations interpreting the expanded protections to the disabled contained in the ADA Amendments Act. Those regulations became effective in May of this year and listed diabetes as a recognized and protected disability.
For more information on employment and labor law matters, contact the Law Office of Russell J. Thomas, Jr., whose office provides creative solutions to today’s workplace challenges faced by individuals, human resource departments, business managers and corporate level management. Mr. Thomas received his undergraduate and JD degrees from Harvard University, and he has practiced law for over thirty years. Contact Russell Thomas directly at (949) 752-0101, or e-mail rthomas(at)emplmntattorney(dot)com. Follow him on Twitter @EmplmntAttorney and http://www.Facebook.com/EmplmntAttorney for practical advice relating to business and employment litigation, or visit http://www.EmplmntAttorney.com.