Circuit Judge Richard Posner, writing for the 7 th U.S. Circuit Court of Appeals, agreed with a ruling by U.S. District Judge William Griesbach of the U.S. District Court for the Eastern District of Wisconsin. Griesbach cleared Green Bay, Wisconsin-based Schneider National in the firing of trucker Jerome Hoefner after a fainting spell led to Hoefner’s diagnosis.
Ironically, the incident with Hoefner took place shortly after getting an award for having driven a million miles for Schneider without an avoidable accident. Hoefner later got a trucker job with another trucking company. Schneider, the nation’s largest truck company, employs 13,000 drivers.
Posner asserted that Schneider was justified in evaluating how much risk it was willing to take by continuing to allow Hoefner to drive while suffering from neurocardiogenic syncope. The nervous system disorder can produce a sudden blood pressure drop that in turn cuts the amount of blood reaching the brain, causing the person with the disorder to faint, according to the court.
Two years before the Hoefner fainting spell, another driver who had contracted the same condition had driven a Schneider truck off a bridge and been killed. According to Posner, the incident with the second driver precipitated the company’s adoption of a zero tolerance policy for drivers with neurocardiogenic syncope.
“The fact that another employer and, as in all such cases, the worker himself are willing to assume a risk does not compel the worker’s current employer to do likewise,” Posner contended. “â€¦There is nothing to suggest that Schneider has a mistaken understanding of neurocardiogenic syncope. It simply is unwilling to risk a repetition of the calamity (surrounding the second driver’s death).”
Posner rejected an EEOC argument that medication would mitigate the chance of an accident.
“The risk is not zero, as the EEOC suggests, even if Florinef is totally efficacious, because Hoefner could forget to take his medicine,” the jurist wrote. “Anyway the drug is not totally efficacious. It merely reduces the risk of dehydration, and that is only one risk factor for neurocardiogenic syncope.”
The latest 7 th Circuit ruling in the appeal of Griesbach’s decision was sparked by a lawsuit filed on Hoefner’s behalf by the Equal Employment Opportunity Commission (EEOC), which charged that Schneider had fired the trucker because it mistakenly believed Hoefner’s ailment was a disabling condition within the meaning of the Americans with Disabilities Act (ADA). Among other things the ADA forbids discrimination in employment against persons mistakenly believed to be disabled.
The latest decision is here .