A Tough Break

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A former Wal-Mart pharmacist with diabetes who closed the store’s pharmacy in Chadron, Nebraska, while he ate lunch is not covered under the Americans With Disabilities Act (ADA), the 8th U.S. Circuit Court of Appeals confirmed in a July 2002 ruling.

The judges ruled 2-1 in favor of Wal-Mart, saying that Stephen Orr’s lawsuit failed to show that he was disabled under either the ADA or the Nebraska Fair Employment Practices Act. The appeals court cited a Supreme Court ruling which held that a physical condition that can be corrected by medication or otherwise is not considered to be a disability.

Orr, who has insulin-dependent diabetes, said that a previous manager had authorized him to take a lunch break, leading Orr to routinely close the pharmacy for 30 minutes over the noon hour to eat.

A new manager told Orr that Wal-Mart policy required the pharmacy to remain open and issued a written warning that noncompliance would result in termination. In his letter of response, Orr argued that working in the pharmacy without an uninterrupted lunch break was adversely affecting his diabetes control. A letter from the manager, in return, noted that Wal-Mart had always permitted Orr to bring food into the pharmacy, provided access to a refrigerator and allowed him to eat or snack in the pharmacy. At this point, Orr said that he was resuming lunch breaks away from the pharmacy.

He was then terminated.

“Orr’s diabetic condition occasionally produced symptoms which moderately impaired his performance as a pharmacist in a single-pharmacist-on-duty retail store,” the court ruling says. The court concluded that Orr’s case had failed to prove that a major life activity was substantially limited, instead proving only that it “.might,’ .could’ or .would’ be substantially limiting if mitigating measures were not taken.”

The judges added that Orr’s diabetes “does not place substantial limitations on his ability to work.”

The dissenting judge wrote that Orr’s allegations that he experienced “seiz-ures, deteriorated vision, slurred speech, frequent urination, lack of concentration, awareness, coordination, strength and consciousness” are proof of what did—not could—happen when Orr was not allowed to follow a rigid eating schedule.

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