A Catch-22

The key to changing the law turned out to be a matter of language, first and foremost. The 1990 Americans with Disabilities Act defines disability to mean a "physical or mental impairment that substantially limits one or more major life activities." That had become a problem for people like Steigauf after a pivotal 1999 Supreme Court ruling. In Sutton v. United Air Lines Inc., two sisters had sued United after they were denied jobs because they couldn't pass an eye exam if they weren't wearing glasses. In deciding whether the sisters should be protected under the Americans with Disabilities Act, the Supreme Court looked at the women's abilities when they used "mitigating measures"—in this case, eyeglasses—to correct their condition. With glasses, the women's vision was normal, so the court ruled that they weren't substantially limited in any major life activity and, therefore, weren't protected by the law. Yet United had not allowed the women to take their eye exams with glasses.

It was a catch-22: The women couldn't become United pilots because of their sight, but because they were able to correct their vision, they weren't protected under the law. "When I heard the decision, I had two reactions," says Daniel Kohrman, a senior attorney with AARP Foundation Litigation in Washington, D.C., and chair of the Legal Advocacy Subcommittee at the American Diabetes Association. "One, the Supreme Court was taking away what many people had worked so hard to accomplish by being so overly restrictive in an interpretation of the [law]. And two, what it meant for me personally as a person who uses insulin: that I very well might not be protected by the law."

Lawyer Daniel Kohrman says that it was as if the courts were saying insulin was a cure, not a treatment.

Indeed, many people with diabetes found they could be discriminated against explicitly because of their diabetes but deprived of the right to fight discrimination, primarily because they used "mitigating measures" such as insulin or oral medications. It was as if the courts were saying insulin was a cure, not a treatment requiring accommodation, Kohrman says. And the better someone with diabetes managed the disease, the more likely a court was to rule the person had no disability.

In the cases of Steigauf and Milt Klise, another UPS employee with diabetes who lost his position, because they used insulin the law at the time made them ineligible for renewal of a federal Department of Transportation certification that UPS required. Unlike many UPS employees, though, Steigauf and Klise were not delivery drivers but mechanics. No law required that they have federal certification to do their jobs; they spent almost no time behind the wheel at work. Steigauf and Klise argued that they were entitled to "reasonable accommodation" under the law. They asked UPS to evaluate their individual situations and waive the requirement that they be licensed for interstate driving.

In response, UPS asked the men's doctors to state in writing whether their patients were "substantially limited in any major life activities." According to John Griffin, a lawyer who worked on both cases as an American Diabetes Association volunteer, this question posed a trap for doctors unfamiliar with the legal definition of disability. A doctor who answered no—who rightly felt that diabetes did not hold anyone back from leading a full life—might unwittingly undermine the patient’s right to seek redress for discrimination. Indeed, the company said that the law did not protect the men, because diabetes wasn’t legally a disability. To UPS, it was a safety issue. "UPS is always going to err on the side of safety, and we believe with commercial vehicles on public roads that DOT certification is required," says UPS spokesperson Susan Rosenberg.