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Construction, utility firms settle with EEOC over failure to hire epileptic worker


ATLANTA—The Equal Employment Opportunity Commission has reached a $49,500 settlement with a construction company and utility company for withdrawing a job offer to a heavy equipment operator with epilepsy.

The EEOC said Friday that according to its September 2011 lawsuit, Garney Construction Co., a unit of Kansas City, Mo.-based Garney Holding Co., offered a front-end loader job to Bryan Mimmovich at the Juliette, Ga., construction site of the Atlanta-based Georgia Power Co. Mr. Mimmovich had worked for Garney on two previous occasions.

Garney's contract with Georgia Power required applicants to pass a Department of Transportation physical exam, an American Society of Mechanical Engineers physical exam or another equivalent medical exam, according to the EEOC's statement.

Mr. Mimmovich was diagnosed with epilepsy at age 12, but had been seizure-free with medication for more than eight years at the time he applied for the job, according to the EEOC.

But he could not pass the DOT physical exam because he was on medication for epilepsy, which is an automatic bar to drivers under DOT regulations. The EEOC said, though, that federal law does not require heavy equipment operators to pass a DOT physical exam.

Garney subsequently withdrew the job offer, citing its contractual requirements with Georgia Power.

The EEOC lawsuit charged that Garney failed to hire Mr. Mimmovich because of his disability, and that Georgia Power interfered with his employment relationship with Garney by requiring the firm to refuse to hire him because of his disability without an individualized assessment of his ability to perform the job.

“Refusing to hire a qualified job applicant with epilepsy, long controlled by medication, defies logic and violates the law if an employer does not determine, after performing an individualized assessment of the applicant, that the applicant is a threat to the health and safety of himself or others,” Barbara A. Seeley, regional attorney of the EEOC's St. Louis district office, said in a statement.

“Congress passed the (Americans with Disabilities Act) to protect Americans with disabilities from adverse employment actions based on fears and myths about their conditions. People with epilepsy whose seizures are controlled by medication should not automatically be excluded from the workplace because employers fear on-the-job accidents,” she said.

Georgia Power said in a statement, "While we do not comment on the specifics of settlements, Georgia Power complies with the Americans with Disabilities Act."

A Garney spokesman could not be reached for comment.

The EEOC issued final regulations for the Americans with Disabilities Act Amendments Act this year. The final regulations of the revised law keep the definition of disability as a “physical or mental impairment that substantially limits one or more major life activities,” but increase the focus on accommodating disabled employees.

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