Tuesday, October 6, 2015

Beware blanket exclusion policies under the ADA

Nicholas Siewertsen, deaf since birth, sued The Worthington Steel Company, claiming that it discriminated against him when it banned him from performing any job requiring him to operate forklifts or cranes.

From the time of his hiring in 2001 until the ban in 2011, Siewertsen operated forklifts, overhead cranes, and other motorized equipment without incident. He communicated with his co-workers using a variety of techniques and tools, including written messages on notepads, computer programs and text messages, hand gestures, and limited speech. In 2011, however, the plan human resources manager learned, apparently for the first time, that the company had a corporate-wide policy against deaf employees driving forklifts. Without considering Siewertsen’s decade of on-the-job performance, the company disqualified him from his current position, and transferred him, without a demotion in pay, to one of four menial jobs in the plant that did not require the use of forklifts or cranes. Siewertsen sued, claiming that the company violated the ADA by applying the no-forklifts-for-deaf-employees policy, and transferring him to another position. (Even though the transfer did not result in a reduction in pay, Siewertsen claimed the new position lacked any opportunities for promotion or advancement within the company).

The district court denied the employer’s motion for summary judgment, concluding that a jury should decide whether Worthington Steel satisfied its obligation to engage in an “individualized inquiry” as to whether Siewertsen could perform his job despite his disability:
The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. At bottom, the individualized inquiry requires the employer to consider whether the employee, despite his disability, is capable of performing the essential functions of the job. (internal quotations and citations omitted.)
So, what is an employer to do when faced with an employee whose disability could prevent them from performing a job?
  1. Do not apply a blanket exclusion policies. The ADA mandates an individualized inquiry, and one who excludes a disabled employee pursuant to such a policy has shirked this obligation under the ADA.
  2. Inquire as to an employee’s past experiences and successes working, despite the limitations imposed by the disability.
  3. Consider reasonable accommodations that will enable the employee to perform the essential functions of the job.
If you do nothing other than apply a blanket policy, you will have a hard time showing a court that you engaged in the required individualized assessment. The ADA is intended to be a law of inclusion that breaks down barriers that prevents disabled employees from working. The more effort you took to attempt to break down those barriers and permit an disabled employee to work (even if it ends up not working out), the better position you will be in if a disabled employee sues you.

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