By Terry McCay

In a recent decision from the federal court for the Southern District of Texas, a refinery’s refusal to hire an applicant who admitted to having weakness on the right side of his body did not violate the Americans With Disabilities Act (ADA). In E.E.O.C vs. Lyondell-Citgo Refining, L. P. (slip copy, 2008 WL 961909), the defendant withdrew a conditional offer of employment based on a third party medical evaluation and determination that the applicant was not medically qualified for an Operator position due to residual right-sided weakness from a blunt force head trauma suffered as a teenager.

Due to unilateral weakness on the right side of his body, it was medically determined that he posed an increased risk of slipping and/or falling while climbing, thereby posing a danger to himself and others. Refinery Operators were required to have the ability to climb ladders for one to three hours per day. Based upon defendant’s withdrawal of the conditional offer of employment, the applicant timely filed a discrimination charge with the EEOC, which sued the defendant under the ADA.

The EEOC did not contend that the applicant actually suffered a substantially limiting impairment to a major life activity, but rather that defendant “regarded” the applicant as disabled or alternatively, that the applicant had a “record of” disability. Since “climbing” is not a major life activity under the ADA, and the applicant was medically disqualified solely due to his inability to safely climb ladders, there was insufficient evidence that defendant “regarded” the applicant as substantially limited in a major life activity. This failure by the EEOC to establish its prima facie case resulted in summary judgment for defendant on the “regarded as disabled” claim. Concerning the EEOC’s alternative theory that the applicant had a “record of” disability, the Court noted that, “At most, his medical disclosures reflect a record of impairment, which is insufficient to raise a genuine issue of material fact as to whether those impairments substantially limited his ability to engage in any particular major life activity.” As such, defendant’s motion for summary judgment on the EEOC’s “record of” disability claim was likewise granted.