Key.jpgAn area under the Americans with Disabilities Act that can be problematic for employers and employees alike concerns conducting the individualized inquiry that is required to determine if an employee’s disability or another condition disqualifies the employee from a particular position. This issue recently played out in a federal district court case of (Siewertsen v Worthington Steel Co, 9-25-2015).

In this case, the plaintiff, Nicholas Siewertsen, is deaf. He worked for the Worthington Steel Company, since 1999. Among his other duties as a Worthington employee, Siewertsen regularly and without incident operated forklifts, overhead cranes, and other heavy motorized equipment.

In 2011, however, Siewertsen’s supervisors learned – incredibly for the first time – of Worthington’s corporate policy prohibiting deaf employees from operating forklifts. The supervisors immediately barred Siewertsen from operating forklifts and cranes. They also determined, in light of that corporate policy, Siewertsen was ineligible to perform all but four jobs at the plant.

Siewertsen filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and similar state agency. He alleged Worthington had discriminated against him on the basis of his deafness with respect to “discipline, promotion, and reasonable accommodation.” He further claimed the company’s decision to ban him from performing any job requiring him to operate forklifts or cranes constituted discrimination on the basis of a disability.

The Court easily found there was no dispute that Siewertsen was disabled, or that Worthington took the adverse employment action solely because Siewertsen is deaf. But the issue of whether the employer made the required individualized inquiry to comply with its ADA obligations was left to be resolved.

The ADA’s Requirements

At its core, the ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of disability.” See 42 U.S.C. § 12112(a)). Accordingly, an employer must provide reasonable accommodations for the known limitations of an otherwise qualified employee with a disability unless doing so would impose an undue hardship. 42 U.S.C. § 12112(b)(5)(A). And for an employee to prevail on an ADA claim the employee must prove: 1) he or she has a disability; 2) the employee was otherwise qualified for the position; and 3) the employer excluded the employee from the position because of the disability.

The ADA’s Individualized Inquiry

Turning to the issue of whether Siewertsen was qualified for the applicable positions and how Worthington determined he could not work in those positions, the court noted that, “[t]he ADA mandates an individualized inquiry in determining whether an employee’s disability or another condition disqualifies him from a particular position.” This means:

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 … people with disabilities ought to be judged on the basis of their abilities; they should not be judged nor discriminated against based on unfounded fear, prejudice, ignorance, or mythologies; people ought to be judged on the relevant medical evidence and the abilities they have.

In sum, the individualized inquiry requires the employer to consider whether the employee, despite his disability, is capable of performing the essential functions of the job, which Siewertsen argued Worthington failed to undertake. In support of this position, Siewertsen argued:

  • His managers and supervisors relied on the company’s blanket policy forbidding deaf employees to operate forklifts or cranes rather than on an individualized assessment of his ability to operate forklifts and overhead cranes;
  • He also emphasized that he operated forklifts and cranes for several years without incident; and
  • He also contended that his employer never asked Siewertsen about those experiences or allowed him to demonstrate his proficiency on a forklift or crane.

The Court acknowledged that the employer presented sufficient evidence, “though perhaps just barely,” to support a reasonable finding that Worthington performed the required inquiry to determine which positions in the plant he could perform with or without accommodation. Accordingly, the individualized inquiry issue would proceed to trial to be determined by the jury.

Take Aways

First, employers and employees need to understand that past work experiences of employees in the applicable position, or similar position must be considered when making an individualized inquiry. Here, Siewertsen had safely and successfully operated forklifts and overhead cranes at the plant without sustaining or causing an injury from a piece of heavy equipment due to his inability to hear.

Second, your managers need to have a working knowledge of your company’s policies. Here the court was troubled by the fact that the managers were relying on a blanket company policy forbidding deaf employees to operate forklifts or cranes. However, for years, these same managers were entirely ignorant of that policy.

For more information about complying with the federal ADA or Michigan’s counterpart, as well as assessing reasonable accommodation requirements under both employment statutes, contact Michigan employment attorney Jason Shinn. Since 2001, he has worked with employers to comply with ADA obligations, and litigated ADA lawsuits on behalf of both employers and employees.