Brian Ashe Quoted in Business Insurance Magazine

In the July 17 issue of Business Insurance magazine, the article “9th Circuit Ruling Complicates Accommodation of Disabilities” highlights a 9th U.S. Circuit Court of Appeals decision involving an epileptic employee who hid his condition from his employer and was terminated following a seizure that nearly caused an accident; the court ruled that the employee should not have been discharged. The unanimous decision handed down July 6 by the three-judge panel in Robert Dark vs. Curry County disagrees with some other federal appellate courts in ruling that terminating an employee whose misconduct arises from his or her disability is discriminatory. According to the court record, Robert Dark, whose job with the Curry County, Ore., Road Department involved operating heavy equipment among other duties, suffered from epilepsy since he was 16. Mr. Dark controlled his condition with medication but still had occasional seizures usually presaged by a so-called ``aura,'' which in his case was ``akin to a nervous jerk,'' according to the court record. About half the time that he experienced an aura and typically an hour or longer after the aura, he suffered an epileptic seizure.

He experienced an aura before work on Jan. 15, 2002, but did not inform anyone of the possibility of his suffering an epileptic seizure. Later that day, he had a seizure while driving a county pickup truck. A passenger, another Road Department employee, gained control of the slowly moving vehicle and brought it safely to a stop. Observers say that while the decision narrowly focused on Mr. Dark's eligibility under the ADA, it did not to take into account the potential danger in which he placed himself and others by failing to warn his employer of his epilepsy.

"The 9th Circuit Court of Appeals ``really ignored the fact...that this employee hid information which would have prevented this situation,'' said Brian Ashe, an attorney with Seyfarth Shaw LLP in San Francisco. ``He did not give the employer an opportunity to accommodate him before he had the seizure.'' . . . ``It's going to make exhausting the accommodation process…for employers with significant workforces,'' said Mr. Ashe."