law and state laws are available to prevent discrimination against persons
with diabetes. Over the last several years, since a ruling by the United
States Supreme Court in a case called Sutton v. United Airlines in which
the Court ruled that persons with vision problems that are correctable
with eyeglasses are not protected by federal anti-discrimination laws,
there has been some dispute about whether or not diabetes is still considered
a protected disability under federal anti-discrimination law.
Those who argue it is not assert that diabetes is similar to a vision
problem that is easily correctable because persons with diabetes can
take oral medications or insulin to correct their medical problem.
It seems to me that people making this argument have clearly never actually
taken insulin. Anyone who has taken insulin is all too well aware that,
unlike wearing eyeglasses, the “cure” of taking insulin
also entails serious medical risks. Perhaps more importantly, even if
there were a risk free aid of some kind, it would still not preclude
discrimination against persons with diabetes and would still not end
the need for anti-discrimination laws such as the federal Americans
with Disabilities Act (“ADA”) which is enforced by the Equal
Employment Opportunity Commission (“EEOC”) and by private
lawsuits for harmed employees.
Some states, such as California, have recognized that protection of
citizens against discrimination based on health issues is too important
to be left to the uncertainties of ADA interpretation by our present
Supreme Court and have enacted more sweeping protections that eliminate
the question entirely. California Government Code Section 12921, et.
seq. (specifically including Section 12926.1(c)) explicitly protects
persons suffering from diabetes in their right to “hold employment
without discrimination because of…physical disability… [or
medical condition…”], so there is no longer any question
that diabetes is a protected disability in the State of California.
In order to take advantage of the protections of federal and state law,
persons with medical disabilities must make meaningful efforts to work
with their employer and explain their illness and what steps are necessary
for them to perform their work duties with reasonable accommodations.
These efforts are usually only necessary after hiring, since asking
questions about medical issues is unlawful for most occupations during
the hiring process. The exception to this rule includes jobs where certain
illnesses are reasonably considered as making it unsafe or even impossible
for the work to be done by the disabled employee. For persons with diabetes,
this has included jobs such as commercial driving or being an airline
pilot where the employee takes insulin. It has also sometimes included
jobs in occupations such as fire and police work. But improvements in
the ability of persons with diabetes to handle and manage their illness
have made it no longer impossible for all persons with diabetes to work
in these occupations safely and with distinction. As a result, employers
typically must review the facts regarding the individual job applicant
and that person’s ability to handle the job and the illness before
making a hiring or retention decision.
I have represented many employees in these situations and, more often
than not, have been able to work with the employer by explaining diabetes
and the needs of the employee and been able to demonstrate that the
employee is well able to perform the job well with reasonable and easily
Here is an example of such a letter I wrote to the employer of one such
own diabetes diagnosis when I was in college caused me to change my
career ambitions. At the time, I was an editor of my university’s
student newspaper and a reporter for a daily in Boston. My goal was
to become a foreign war correspondent.
After my diagnosis, I was advised by my endocrinologist that my diabetes
would make my career goal impossible, putting my life at risk as well
as those around me who would be obliged to assist me with blood sugar
problems. I changed my career path and ended up going to law school.
Years later, after dramatic improvements in insulin and blood glucose
meters and other diabetes management techniques, I was able to travel
to remote foreign locations struggling with brutal warfare. Instead
of doing so as a journalist, I did so as an attorney, collecting evidence
of war-time atrocities that led to grants of political asylum for my
My own experiences taught me that it is no longer necessary to change
one’s ambitions because of diabetes, so long as precautions are
taken and reasonable plans are made.