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Jose Canucey might not be able to hear, but that doesn’t mean he’s mute. In fact, he’s quite capable of perfectly normal conversation, but with a slight, not quite distinguishable accent. If you didn’t know he was reading your lips, you’d never know he was stone deaf. Jose also communicates through sign language and written notes.
Acme hired Jose as a part-time warehouse clerk and expediter in early January. The results of his preemployment skills and aptitude testing revealed that he demonstrated a propensity to be organized and could balance multiple responsibilities. The performance predictors proved to be accurate.
His desk had no telephone because the device was of no value to him. His listing in the company directory included only his e-mail address. Well within the 90-day probationary period, Jose mastered the routine and found that his daily grind smoothed out into a no-brainer. He usually completed his daily ration of work about an hour before the end of the shift. He looked at it as a reward that accrues to diligence and organization. Unfortunately, Ray Elrhodes, his manager, noticed Jose’s end-of-shift coasting.
Ray began offloading his own persistently nagging backlog onto Jose’s desk as well as some of the duties formerly assigned to another part-time clerk. Even so, Jose was barely able to handle these increased duties that kept him very busy and focused for every minute he was at his desk. Meanwhile, Ray congratulated himself for finally having hired a capable and loyal worker.
A few months later, Jose’s payoff arrived when Ray asked him if he wanted to work full time, a situation that provided an adequate benefit package denied to part-timers. Jose’s decision, too, was a no-brainer.
The new duties that came with his full week brought Jose in contact with certain payroll records. These indicated that Acme pays equipment operators much more than it pays mere pencil pushers in the back office in the warehouse. A plan hatched in his mind.
He would become a forklift operator. Several facts supported his decision. First was the recent proliferation of wireless technology in the plant environment. Every Acme forklift now was equipped with a computer and LCD monitor. Any forklift operator who could read knew where to take the current load and where to pick up the next one. This technology supplanted the walkie-talkies the operators had been using for the past few years. For a deaf guy, this was ideal.
The second factor was a matter of company policy. According to a document in his employee handbook, Acme policy permitted any employee to be trained to operate a forklift truck, as long as they could communicate with anyone in the area where the forklift is being operated.
The warehouse was sparsely populated, so there was little danger of colliding with a pedestrian. Every aisle intersection was equipped with a large convex mirror that gave a clear view around corners. Forklift operators rarely needed spotters because the terrain was perfectly flat, the aisles were wide and the target pallets were clearly visible. Also, RFID technology made it impossible for an operator to mistake a load. Jose completed an enrollment form to get himself into forklift training and left it on Ray’s desk for his signature and approval.
When Ray saw the form at the start of the next shift, he felt betrayed. Via e-mail, he asked Jose to come into his office to discuss the training request, even though only about 20 feet separated their desks. When Jose entered, Ray explained that he wasn’t going to sign the training form because the forklift policy prohibited anyone from operating the equipment if communication between the operator and the spotter is difficult or impossible. Ray explained that the proviso was a matter of safety and was in complete accord with OSHA regulations. Communication is a job necessity, and its lack compromises the safety of the plant and coworkers.
Jose saw his dream fading. He invited Ray to walk through the warehouse and look around. None of the conditions that could possibly justify the need for operators to communicate with anyone exist in this warehouse. Jose also cited the fact that several forklift operators routinely listen to music through stereo headphones while they cruise the aisles toting loads hither and yon.
Ray merely replied that the matter was closed and sent Jose back to his desk to handle more paperwork. This kind of trouble didn’t sit well with Ray and, as a result, Jose’s schedule became unpredictable, although, on average, he still worked the same number of hours each week. Periodically at the end of a shift, for example, Ray would ask Jose to stay late today but not come in the next shift for which he was scheduled to work. Or Ray sometimes told him to leave in the middle of his shift, but to make up the hours tomorrow or during some other shift when he wouldn’t normally be scheduled to work.
Soon, Jose realized that his work life was out of control and his leisure time existed only at the whim of someone else. The following Friday, Ray again asked Jose to shuffle his weekend schedule at the last moment. Jose refused and this led to a minor argument, but it was enough to push Jose over the edge. He walked back to his desk and immediately composed his letter of resignation. After signing it, he walked into Ray’s office, handed it to his boss, wheeled around and left the building.
On Monday, Jose sent Acme a letter claiming that he had been improperly denied requests for reasonable accommodations and that Acme had constructively discharged him. He filed suit with the EEOC, saying that Acme is in violation of the Americans with Disabilities Act.
How could this situation have been prevented? Can a company unilaterally ignore OSHA regulations because a particular peril or danger doesn’t exist? Can an employer justifiably prevent an employee from getting additional training? Should a clerk have access to payroll information?
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