Legal

Patriots Cutting Diabetic Player Raises Serious ADA Issues

By Staff Report

May. 16, 2013

The New England Patriots recently cut defensive tackle Kyle Love. This news is not worthy of consideration on an employment law blog until I tell you the reason the Pats cut him. According to FoxNews, the Pats cut him two weeks after his diagnosis with Type 2 diabetes out of a concern over his “recovery time.”

If I’m Kyle Love’s agent, I’m finding him the best employment lawyer possible to argue that the Patriots cut him because of his diabetes, a protected disability.

Yesterday, the Equal Employment Opportunity Commission conveniently published guidance on the employment rights of people with specific disabilities. One of the specific disabilities for which the EEOC published new guidance is diabetes.

According to the EEOC, there is little doubt that diabetes is a disability protected and covered by the Americans with Disabilities Act:

As a result of changes made by the ADAAA, individuals who have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function. Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin, medication, or diet controls a person’s blood glucose levels. An individual with a past history of diabetes (for example, gestational diabetes) also has a disability within the meaning of the ADA. Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of diabetes or because the employer believes the individual has diabetes.

Given the timing of the Patriots’s decision, coupled both with its apparent failure to offer any kind of accommodation for Kyle Love’s disability, and the stated reason for its decision, Kyle Love appears to have a strong disability discrimination case. Had the Patriots called me, I would have counseled against cutting him, at least at this time and in this manner.

Consider Kyle Love’s problem in light of this hypothetical, provided by the EEOC in its diabetes guidance:

When an actor forgets his lines and stumbles during several recent play rehearsals, he explains that the fluctuating rehearsal times are interfering with when he eats and takes his insulin. Because there is no reason to believe that the actor poses a direct threat, the director cannot terminate the actor or replace him with an understudy; rather, the director should consider whether rehearsals can be held at a set time and/or whether the actor can take a break when needed to eat, monitor his glucose, or administer his insulin.

It is an understatement to characterize this termination—undertaken without any apparent consideration of whether the team could accommodate the diabetes—as high risk.

Jeffrey Nye made me aware of this story on Twitter last night, and asked, “The Patriots cut Kyle Love because he has diabetes. How can they do that?”

They can’t (or at least shouldn’t be able to in the manner in which they did it). It would not surprise me in the least if, given the high profile nature of this employment decision, the EEOC takes up Kyle Love’s cause to further its mission of disability-rights awareness.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

What’s New at Workforce.com?

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog

Compliance

Minimum Wage by State in 2023 – All You Need to Know

Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1.  Thr...

federal law, minimum wage, pay rates, state law, wage law compliance

workforce blog

Legal

New Labor Laws Taking Effect in 2023

The new year is fast approaching, and with its arrival comes a host of new labor laws that will impact ...

labor laws, minimum wage, wage and hour law

workforce blog

Legal

Wage and Hour Laws in 2022: What Employers Need to Know

Whether a mom-and-pop shop with a handful of employees or a large corporation staffing thousands, compl...

compliance, wage and hour law