Please ensure Javascript is enabled for purposes of website accessibility
Home / Expert Opinion / Workplace Issues: Persons with diabetes, epilepsy often ‘regarded as’ disabled

Workplace Issues: Persons with diabetes, epilepsy often ‘regarded as’ disabled

Lindy Korn

Lindy Korn

The ADA prohibits discrimination against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. The Appeals Court reiterates its holding in Littlejohn v. City of New York, 2015 WL 4604250, at *4 (2d Cir. 2015), that the burden a plaintiff must satisfy in order to establish her initial prima facie case has been described as “not onerous” and “minimal and de minimus.”

In this case, the plaintiff challenges defendant NYCTA’s refusal to consider subsequent developments in his medical condition that could make him newly eligible for classification as a train operator. He was not trying to redress the validity of a prior reclassification in 2005, to which he consented from train operator to station agent, Dawson v. New York City Transit Auth., 2015 U.S. App. LEXIS 16445, decided 9/16/15.

The Second Circuit in this decision cites to an important goal of the ADA, to ensure that persons with medical conditions that are under control, and that do not currently limit major life activities, are not discriminated against on the basis of their medical conditions. For example, individuals with controlled diabetes or epilepsy are often denied jobs for which they are qualified, 42 U.S.C. Section 12102(1).

The district court held that the plaintiff failed to allege that he actually applied for the job as train operator, and therefore cannot establish a “failure to hire, promote or recall” adverse employment action. However, the plaintiff attempted to secure a NYCTA medical examination, which was rebuffed. Furthermore, the plaintiff has alleged a four-year campaign of letter writing, phone calls, and in-person meetings to secure a medical evaluation and restoration to his previous position.

There was also evidence from the defendant’s position statement to the New York State Division of Human Rights that the NYCTA was refusing to consider him for reclassification as a train operator because of his epilepsy. Thus, an inference exists that plaintiff has suffered an adverse employment action due to his disability. Thus, the district court made an unreasonable inference in the defendant’s favor, the court now holds.

Lastly, the Second Circuit found that the plaintiff pled particularized and plausible facts that he was qualified to perform the essential functions of his job with or without reasonable accommodation. The plaintiff’s own neurologist provided four letters stating that his condition no longer contraindicates work as a train operator, one of which makes explicit reference to the NYCTA’s own medical standards for train operators.

Thus, the district court, by dismissing the plaintiff’s complaint on the ground that he was not qualified, would be to deny the truthfulness of the plaintiff’s allegations, or to refuse to draw all inferences in his favor, which neither the district court or the court of appeals may do.

This case reminds us that persons who are regarded as disabled, may not always be considered as such, and that the ADA purpose was to protect persons with medical conditions that are under control.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at, (716) 856-KORN (5676) or