Earlier in the week, I shared four ways to BOTCH a sexual harassment investigation. My “muse” was an Employee Relations Department that caught the attention of the EEOC for its alleged poor handling of an employee’s complaints of sexual harassment.
But I appreciate a good comeback story, don’t you? And I’ve got one for you today.
The federal court decision I read last night involves a different employee working for the same employer. This employee did not allege that he endured any harassment. Instead, he is deaf and claimed that the company discriminated against him and failed to accommodate his disability.
The plaintiff applied for a part-time ramp agent position with the defendant at an airport. The plaintiff relied heavily on lip-reading. If he can’t see lips, he cannot understand what a person is saying. His hearing aids alone do not allow him to pick out individual words, and he cannot understand speech that occurs behind him.
The plaintiff disclosed in his job application that he was deaf. The company hired and worked with him on accommodations, such as providing scripts for the training without closed captioning.
But shortly after hire, it became apparent that the plaintiff posed a safety risk to himself and others on the tarmac because he could not clearly understand verbal communication without lip-reading. For example, there was an incident with a belt loader where the plaintiff failed to remove the chocks from behind the wheels, and others could not get his attention before he backed up. Other employees raised concerns that the plaintiff “could not properly communicate with agents on the ramp.”
To its credit, the defendant sought to remedy the issue and asked the plaintiff to provide medical information, which he did. His doctor suggested that the defendant “allow for communication to take place in a well-lit environment and in a reasonably quiet setting to improve upon communicative abilities,” which wasn’t conducive to the plaintiff’s loud work environment.
Since the defendant felt the plaintiff was a significant safety risk to himself and other employees, the company offered him other positions at the same pay and benefits. Still, the plaintiff rejected them and declined to look for others. Eventually, the defendant terminated his employment.
An employee who poses a “direct threat” to the health or safety of others does not fall within the discrimination protections of the Americans with Disabilities Act. It’s an individualized assessment based on (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.
Here, the defendant met its burden of establishing a direct threat. The plaintiff would always be deaf; he worked in an ever-dangerous environment and nearly had an accident already.
The plaintiff’s problem on the failure-to-accommodate claim was that the defendant showed good faith by offering him comparable positions, but he summarily rejected them.
Ultimately, the defendant prevailed — a measure of redemption for the Employee Relations Department.