BLANKET EXCLUSIONS
BY THOMAS D. SCHNEID
The questions many personnel officers have been asking involve the issue of utilizing blanket exclusions for particular disabilities. A recent case in the United States District Court for the Northern District of Ohio has shed light on this particular issue and should provide guidance for fire departments in the future. In summarizing the decision of the U.S. District Court, blanket exclusions of particular disabilities that are protected under the Rehabilitation Act and the Americans with Disabilities Act (ADA) are considered a violation of these laws.
In Bombrys v. City of Toledo, 849 F. Supp. 1210 (N.D. Ohio 1993), an insulin-dependent diabetic wanted to become a City of Toledo police officer. In 1992, the city notified the applicant that he was accepted as a member of the 1992 police officer training class and the candidate underwent the required battery of psychological and physical examinations as part of his employment training process. The candidate successfully passed the psychological portion of the examination; however, he informed the physician during the physical examination that he was a diabetic. The city had instituted a policy prohibiting insulin-dependent diabetics from becoming police officers. The candidate passed all other portions of the required physical examination but was automatically rejected in accordance with the city`s blanket exclusion of diabetic applicants. The candidate appealed this decision and ultimately filed suit in district court seeking injunctive relief. The court issued a temporary restraining order prohibiting the city from terminating the candidate. However, before the final decision of the court, the candidate had completed the officer training and was performing the duties of a police officer.
The basic issue of this case was whether the city could utilize a blanket exclusion for all insulin-dependent diabetic applicants from the police force. The court looked at three basic issues within the parameters of this action–namely, whether the candidate posed a direct threat to the safety and health of members of the police force, whether he could perform the essential functions of a police officer position, and whether the city could reasonably accommodate the disability.
The city used the defense that the insulin-dependent candidate would pose a direct threat to himself and to other officers. The city relied on an earlier decision [Davis v. Meece, 692 F. Supp. 505 (E.D. Penn., 1988)] where the FBI was permitted to use a blanket exclusion for insulin-dependent diabetics. The court distinguished this case, noting that the working conditions and duties of a police officer were different from those of an FBI agent and also that the Davis decision was prior to the enactment of the ADA. The court dismissed this argument, noting that the city failed to evaluate the direct threat and also that the ADA mandates that blanket exclusions are to be given the highest scrutiny and are generally discouraged under the Act.
The city additionally argued that the candidate could not perform the essential functions of the police officer position. The court, relying on the 1990 police officer medical standard evaluation process, which contained a written description of the essential functions of a police officer, found that the candidate`s disability would not prohibit him from performing the essential functions of this position. The city additionally argued that providing a reasonable accommodation for the candidate would be overly burdensome and would affect the candidate`s performance of the essential functions of the position. The city added that the candidate might suffer debilitating symptoms while on duty, posing a direct threat to the safety of other officers.
The candidate responded that reasonable accommodation could simply be provided through granting permission that he carry blood sugar monitoring equipment, food or glucose tablets, and a small device containing an insulin injection kit. This reasonable accommodation would permit the candidate to control his blood sugar levels and prevent the occurrence of any sudden symptomology that could create a threat to the safety and health of other officers.
The court found that this reasonable accommodation was not overly burdensome to the city nor was it too expensive nor did it change the fundamental nature of the police officer position. The court examined several other issues with regard to the candidate`s continued employment. However, the court held that the blanket exclusion by the city of all insulin-dependent candidates was a violation of the Rehabilitation Act as well as the Americans with Disabilities Act.
This case should serve as a wake-up call to all fire departments currently using blanket exclusions for individuals with disabilities. You may want to review your current personnel selection procedures and evaluate any blanket exclusions you are currently using. You should also note that any type of blanket exclusion excluding a particular group of individuals with a disability will receive a higher scrutiny by the courts because of the very nature of the exclusion. Can you justify the blanket exclusion of a particular group of disabilities? Can your blanket exclusions withstand the scrutiny of the courts? Are your blanket exclusions absolutely necessary to ensure you are acquiring the qualified candidates necessary to lead your department in the future, or are they eliminating qualified candidates for disability-related reasons? Careful scrutiny of all blanket exclusions now may save you from an expensive “learning experience” in the future. n
THOMAS D. SCHNEID is a professor and attorney with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and a certificate of advanced study in safety, a law degree, an LLM (master of laws) degree in labor and employment law, and a Ph.D in environmental engineering. He has 15 years of experience as a consultant and attorney for general industry.
