Challenges Americans with Epilepsy Face in Employment

Ciera Ambrose and Edgar M. Rivera, Esq.

Epilepsy is one of the most common and serious neurological disorders, affecting approximately 65 million people globally. Adult onset epilepsy is particularly devastating because developing a life-limiting disability at an advanced age is an incredibly stressful challenge—every day life activities require more time and effort, and there are new expenses to bear. The last thing that anyone needs during this time of vulnerability is an employer threatening to terminate employment. The Americans with Disabilities Act (“ADA”) prohibits discrimination in all forms against disabled employees, including qualified individuals living with epilepsy. The ADA provides comprehensive civil rights protections to individuals whose medical conditions interfere with life activities; however, employers often put their own benefits and conveniences ahead of those of their employees, resulting in violations of the ADA.

In Ward v. Grayson County, Texas, Marshall Ward, a Texas Sanitarian worker, alleged that Grayson County terminated his employment for symptomatology of adult onset epilepsy. Mr. Ward worked for Grayson County for over twenty years, when, in 2012, he experienced his first seizure. He alleges that in response, Grayson County placed him in the position of Eligibility Clerk, resulting in a substantial reduction in pay. In October 2013, Grayson County started to investigate Mr. Ward for “violating policies.” Shortly thereafter, he was terminated for allegedly staring at female coworkers’ breasts. Mr. Ward denied the allegation and had never been accused of inappropriate behavior of any kind during his twenty-year tenure. Mr. Ward claims that the accusation was pretext to terminate his employment because of his epilepsy. The case is pending in the Eastern District Court of Texas.

In EEOC v. LHC Group, Inc., the EEOC brought an enforcement action under the ADA on behalf of Kristy Sones against her employer, LHC Group, Inc., alleging she was terminated because she had an epileptic seizure at work. LHC provides hospice, telehealth, private duty and long-term acute care through home and facility-based services. Prior to being hired, Ms. Sones informed LHC that she had previously suffered one seizure. Ms. Sones had annual physicals during her employment and disclosed her epilepsy and the medications she was taking to LHC. After performing successfully as a Field Nurse for several years, Ms. Sones was promoted to Team Leader (LHC denied ever promoting her). Two months later, Ms. Sones had a seizure at work. Less than a month after Ms. Sones returned to work, LHC terminated her, claiming that her seizures made her a liability to the company. The EEOC alleged that LHC failed to accommodate Ms. Sones’ disability and discriminated against her on the basis of that disability by terminating her employment. LHC moved for summary judgment and the district court ruled in favor of LHC, concluding that the EEOC failed to show that Ms. Sones was qualified to serve as a Field Nurse or Team leader, and that LHC’s proffered reason for terminating Ms. Sones was legitimate.

The EEOC appealed to the Fifth Circuit on the issue of which elements a plaintiff must prove to show disability discrimination: (1) that she was subject to adverse employment decision on account of her disability; (2) that she was subject to an adverse employment action and was replaced by a non-disabled person or was treated less favorably than non-disabled employees; or (3) that she was subjected to an adverse employment action on account of her disability or the perception of her disability, and she was replaced by or treated less favorable than non-disabled employees. The Fifth Circuit decided that the first formulation was the correct one to apply to disability discrimination cases, joining the Second Circuit, as well as the First, Fourth, Sixth, Seventh, and Tenth Circuits.

Following the above-mentioned determination, the Fifth Circuit concluded that Ms. Sones was not qualified to be a Field Nurse because the job description required her to drive a car and her epilepsy prevented her from doing so; however, there were genuine disputes of material fact regarding whether Ms. Sones was promoted to Team Leader—for which she was qualified—whether LHC could reasonably accommodate her disability in this position, and whether her disability played a role in LHC’s decision to terminate her. The Fifth Circuit remanded the case back to the district court where it is currently pending.

During the ADA’s twenty-four years of existence, it has protected disabled employees from their employers’ discrimination, giving countless people the freedom to treat their medical conditions without losing their jobs. If you believe your employer has wrongfully discriminated against you based on epilepsy or any other disability, please contact The Harman Firm, LLP.