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PRESS RELEASE
3-12-10

Large Arizona Bottling Company Settles EEOC Disability Discrimination Suit

Kalil Unlawfully Fired Employee Because of Diabetes, Federal Agency Charged

TUCSON, Ariz. -- Kalil Bottling Co., a large Arizona soft drink bottling and distribution company, has agreed to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC’s suit, EEOC v. Kalil Bottling Co., CV 07-00488 TUC-BPV filed in U.S. District Court for the District of Arizona in Tucson, charged that Kalil violated federal law when it fired Gerald Nez, who has diabetes. As a merchandiser, Nez was required to drive his own personal compact pickup truck to complete his duties. The suit further alleged that despite at least four months of flawless work and an impeccable driving record, Kalil required that Nez pass a medical exam. When the medical exam revealed that he had diabetes and was using insulin, Kalil fired him for that reason alone.

For the last 30 years, Kalil has had a policy requiring all employees who drive any motor vehicles as part of their employment, even their own vehicles, to pass a federal Department of Transportation (DOT) medical exam designed for people seeking a commercial driver’s license (CDL) required for trucks over 10,000 pounds. Nez did not need a CDL to fulfill his job at Kalil, the EEOC argued.

“The DOT’s exam automatically prohibits people who use insulin from obtaining CDLs,” said Mary Jo O’Neill, the EEOC’s regional attorney in Phoenix. “That may be perfectly fine when the job requires a CDL, but Nez never needed a CDL to drive his own pickup for Kalil. Under the ADA, this policy is an unlawful qualification standard that tends to screen out individuals with disabilities, including people with diabetes.”

Firing an employee because of a disability violates Title I of the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against qualified individuals with disabilities in employment. Employers may not try to get around the prohibitions against disability discrimination by relying on irrelevant qualification standards that screen out people with diabetes or any other disability.

Nez has since passed away. Pursuant to the consent decree settling the suit, the company will pay $33,000 to Nez’s widow, conduct anti-discrimination training, and eliminate its policy of automatically excluding insulin-using people with diabetes from jobs involving operating motor vehicles.

“The key problem in this case is that insulin-requiring diabetes was an automatic exclusion from employment at Kalil,” said O’Neill. “The company failed to do an individualized assessment of Mr. Nez to see if, in fact, his diabetic condition made him a safety hazard. Millions of Americans use insulin and millions drive in their own car and are perfectly safe drivers.”

EEOC Trial Attorney Diana Chen said, “While Kalil initially may have had good intentions to ensure greater driver safety, it used a shotgun approach that excluded perfectly qualified people with disabilities from employment -- people like Mr. Nez. At the time Kalil fired him, it had absolutely no evidence that his diabetes posed any risk on the road. Companies must be mindful that policies they put in place don’t violate anti-discrimination laws.” 

EEOC Acting District Director Julie Bowman added, “We are pleased that Kalil decided to change its policy. This outcome is a win-win. Kalil now has access to a larger pool of qualified applicants and people with disabilities have a more opportunity in the job market.”

Headquartered in Tucson, Ariz., Kalil supplies popular soft drinks like Snapple, Gatorade and Monster Energy to consumers in Arizona, New Mexico, Colorado and Texas.

The EEOC is responsible for enforcing federal laws against employment discrimination. The EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming, and part of New Mexico (including Albuquerque). Further information about the EEOC is available on its web site at www.eeoc.gov.