by Jane Pfeifle
An employer made an incorrect assumption about a disabled applicant. When a court disagreed with the assumption, the employer paid the applicant more than $50,000. Lynn, Jackson, Shultz & Lebrun, P.C., the firm of article author Jane Wipf Pfeifle, was involved in this case. All facts are taken solely from the court’s decision.
Facts
Twin City Fan manufactures industrial fans and blowers in its plant in Mitchell. In October 2010, Twin City had several open production worker positions, including a parts expeditor position and several assembler positions. Gordon Fahey filled out an application for a production worker position. He toured the plant with Travis Peterson, a production supervisor.
Peterson and LaRue Steffes, the HR manager, believed Fahey was the best applicant for the parts expeditor position. They offered him the position on October 22, 2010. The offer was conditioned on Fahey passing a drug test and physical exam.
Dr. Darla Edinger performed the drug test and physical exam on Fahey. On October 25, she told Twin City that Fahey was blind in his right eye. She recommended that his work station be set up so that he would not be risking injury because of his lack of vision. She stated that he would need accommodations or job training to perform the essential functions of the parts expeditor job.
Steffes determined that Fahey’s monocular vision would not allow him to safely perform the functions of the parts expeditor position. Specifically, she concluded that he could not operate a forklift and that no accommodation would allow him to perform the job’s duties. She contacted the plant manager and her supervisor, and they agreed that Fahey’s condition could not be accommodated. The employment offer was rescinded.
On October 26, Steffes contacted Fahey to explain why Twin City couldn’t accommodate his impairment, but he disagreed and asked the company to reconsider. Steffes went back to her supervisor, who agreed there was nothing the company could do to accommodate Fahey’s impairment.
Twin City’s standard practice is to keep employment applications for one year because it has a high turnover rate (between 47 and 50 percent). When a position becomes available, Twin City notifies qualified applicants. However, it did not keep Fahey’s application. At the time of trial, four dayshift assembler positions were available.
Fahey’s disability discrimination claim
Fahey filed a disability discrimination claim against Twin City. To succeed, he had to show (1) he was disabled under the Americans with Disabilities Act (ADA), (2) he was qualified to perform the essential functions of the parts expeditor job, (3) he suffered an adverse employment action, and (4) his disability was the motivating factor in the adverse employment action.
The court noted that because Fahey is blind in his right eye, his peripheral vision is limited. The impairment substantially limits his ability to see, making him disabled within the meaning of the ADA.
Next, the court found that Fahey’s high-school diploma, bachelor’s degree, service in the navy, and experience working as an assembly line laborer, juvenile detention counselor, and residential living supervisor qualified him for the position. Further, since Twin City gave him a conditional offer of employment, it also thought he was qualified.
Also, Fahey was able to prove that he could perform the parts expeditor position’s essential functions with or without an accommodation. He indicated that he had three years to learn how to deal with the loss of vision in his right eye. At the time, he could play basketball and catch, shoot pool, and parallel park. He used two strategies to make up for his impairment: He used lateral head movements to compensate for his limited peripheral vision, and he was extra cautious in tight and busy environments. Further, he could operate a forklift because he had operated one in the past, had a valid driver’s license, and could parallel park.
Was Fahey a direct threat?
Twin City claimed that Fahey’s monocular vision posed a direct threat to the health and safety of employees at the plant. To assert that defense, the employer was required to show that it relied on the best current medical or other objective evidence to protect a disabled applicant. An employer’s subjective good-faith belief that an applicant poses a threat is insufficient.
Twin City relied on Edinger’s opinion to establish that Fahey posed a direct threat, but it didn’t consult her before making the decision to rescind the employment offer. Edinger opined that Fahey would need an accommodation or job training. Specifically, she noted that he needed to wear safety glasses and that his work station needed to be set up so he would not be at risk of injury.
The court found that Twin City didn’t meet its obligations under the ADA. Before rescinding a job offer because of a safety issue, an employer must make an individualized analysis that relies on medical or other objective evidence. All Twin City had was Edinger’s statement that Fahey needed to be accommodated. Further, the company didn’t ask Fahey about his disability or limitations. The court found that Twin City’s decision to rescind the employment offer was improperly based on prejudice, stereotype, or unfounded generalizations.
Twin City also had to show that the direct threat posed by Fahey couldn’t be eliminated by a reasonable accommodation. Fahey proposed that a side mirror be placed on the forklift to help with his peripheral vision, and Steffes admitted that she didn’t discuss the possibility of modifying the parts expeditor position with anyone. Twin City couldn’t show that Fahey presented a direct threat or that the threat couldn’t be eliminated by a reasonable accommodation.
Twin City then claimed that Fahey couldn’t have performed the assembler position. The court found that he was qualified for the assembler position because it didn’t require more skill, experience, education, or training than the parts expeditor job. The employer asserted that Edinger’s finding that Fahey had arthritis and degenerative joint disease in his spine made him unable to perform the assembler position because it required repetitive movements and stretching. Again, Edinger was aware of Fahey’s conditions, but she simply noted that he had a history of preexisting and non-work- related degenerative joint disease and arthritis. She didn’t suggest he had any limitations as a result of the conditions.
Fahey asserted that he suffered two adverse employment actions. The first was the job offer for the parts expeditor position being rescinded. Second, he claimed that even if he wasn’t qualified for the parts expeditor job, Twin City should have placed him in an assembler position. Twin City claimed that it didn’t have an open assembler position and that it wasn’t required to reassign Fahey to an assembler position. The court rejected that claim, finding that the employer decided that Fahey should be hired as a parts expeditor. Second, Fahey was treated differently than other applicants because his application wasn’t kept on file.
Reasonable accommodation claim
After hearing the evidence, the court found in favor of Fahey on his disparate treatment and reasonable accommodation claims. The court noted that Twin City didn’t consider Fahey’s proposed accommodation (putting a mirror on the forklift). However, the bigger issue was that Twin City didn’t engage in the interactive process before it decided to rescind the job offer.
The court noted that the interactive process is designed to create a dialogue between the employer and the applicant to determine whether an accommodation would allow the applicant to do the job. The court found that failing to engage in the interactive process doesn’t automatically create liability. However, if an applicant proposes a legitimate accommodation and the employer fails to engage in the interactive process, there is strong evidence that the employer failed in its affirmative duty to reasonably accommodate the disabled employee.
The court awarded Fahey, who secured another job, $33,930 for lost wages and benefits. The court declined to award front pay (money after the date of the court’s decision) because of the high turnover at Twin City. The court awarded Fahey an additional $25,000 for emotional damages. In addition, as the prevailing party, Fahey is entitled to costs and attorneys’ fees. Fahey v. Twin City Fan Companies Ltd., Civ. No. 11-4171-KES (DSD 1/13/14).
Bottom line
Twin City fell into the trap of believing that it knew what was best for Fahey and that it was saving him from injury by rescinding the job offer. The employer’s failure to engage in the interactive process and consider reasonable accommodations cost it more than $50,000.
Twin City made an assumption about what would pose a direct threat to employees. It required Fahey to undergo a physical exam, and the doctor noted that reasonable accommodations needed to be made. However, the doctor never suggested that Fahey posed a threat. Twin City went wrong by not talking to Fahey about what accommodations could be implemented for his vision impairment. Further, if Twin City had genuine concerns, it should have gone to the doctor to discuss them. The employer might have come out on the right side of the lawsuit if it had taken action to look for accommodations for Fahey.
Jane Pfeifle is an attorney with Lynn, Jackson, Shultz & Lebrun, P.C., practicing in the firm’s Rapid City, South Dakota, office. She may be contacted at jpfeifle@lynnjackson.com.