Several recent state and federal employment law cases have reemphasized the burden imposed on employers when dealing with disabled employees or applicants, as well as those employees or applicants who are merely “regarded as” disabled. The first case involved an ADA class action suit against UPS on behalf of deaf employees who were denied the opportunity to work as drivers. The second case involved a FEHA claim brought against Lockheed Martin for failure to accommodate an employee who was not “actually disabled”; Lockheed simply thought the employee was disabled. Both of these cases illustrate the extreme care that employers must take to avoid liability when presented with an employee or applicant whom the employer believes is disabled.
In the recent litigation involving UPS, a group of deaf employees brought a class action suit in Federal court alleging that deaf workers were prohibited from competing for driving jobs. UPS required all would-be drivers to pass a hearing test issued by the U.S. Department of Transportation (DOT). UPS imposed this requirement on all drivers despite the fact that the DOT requires the test only for people driving vehicles that weigh more than 10,000 pounds. The deaf workers contended that because UPS has many vehicles that weigh less than 10,000 pounds, the company’s overbroad use of the hearing test constituted a violation of the Americans with Disabilities Act.
UPS argued that, in the face of uncertainty regarding whether deaf drivers are more dangerous than drivers who can hear, it should be given the benefit of the doubt. The court disagreed with UPS, stating that employers only get the benefit of the doubt in cases of uncertainty if they offer persuasive proof that a stricter driving requirement is consistent with business necessity. In coming to its decision, the court ruled that UPS could no longer use the DOT standard to exclude deaf employees from driving vehicles weighing less than 10,000 pounds and ordered that the company assess each applicant individually. Damages have not yet been determined in the case.
In another recent case brought in California state court, an employee of Lockheed Martin Corporation alleged that Lockheed discriminated against him by terminating his employment rather than accommodating his physical limitations. This case differs from most disability discrimination cases in that the employee was not actually disabled; Lockheed simply thought he was.
In late 2000, the Plaintiff injured his lower back while working as a metal fitter. After filing a workers’ compensation claim, the plaintiff participated in a vocational rehabilitation program so that he would be able to take work assignments other than as a metal fitter. Lockheed retrained the plaintiff as a plastic parts fabricator but it was ultimately decided that there was no accommodation that could be made for the plaintiff’s inability to sit or stand for more than three hours a day. The plaintiff filed suit, alleging disability discrimination and failure to accommodate in violation of the Fair Employment and Housing Act. In court, the plaintiff maintained that his standing and sitting restriction could be accommodated by simply providing an additional break or two or allowing him to occasionally sit on a stool.
The Court first found that the plaintiff did not have an actual disability. That, however, did not end the inquiry. The court went on to find that, even though the plaintiff was not actually disabled, the employer must explore reasonable accommodations for, and engage in an interactive dialogue with, applicants or employees whom it regards as disabled. If the employer would have engaged in an interactive dialogue, it would have uncovered the fact that the plaintiff’s restriction could have been accommodated. As a policy matter, the court found that if an employer thinks an employee is disabled, it should not be let off the hook for discriminatory behavior based on the fact that it is mistaken in its assumption. What can a California employer do to avoid the situations in which UPS and Lockheed found themselves? The answer can be found in the interactive process described in the Lockheed decision. When faced with an employee whom the employer knows or believes is disabled, the employer should engage the employee in an interactive process or dialogue. At comparatively low cost, much good can be achieved and liability possibly avoided.
During this process, the employer must leave its preconceived notions behind. Stereotypes and generalities are exactly what the ADA and FEHA aim to eliminate. Thus, an employer shouldn’t rely on its experience with others having the same impairment. The interactive process should focus on the employee’s specific limitations and their effect on his or her ability to perform. The employer should make a clear effort to assist and communicate with the employee in good faith. And finally, if there is going to be a failure of the interactive process (and a resulting suit), the employer should leave no doubt that the fault is with the employee. By properly implementing the interactive process, an employer can provide itself a strong defense to potential liability.