Linda Lathes was looking to fill an apprentice machinist opening at Acme. One application in particular looked promising. The applicant, Sid Sines, had completed a trade school program and appeared to have a solid manufacturing background. When Linda brought him in to interview, though, she discovered Sid was deaf. He had an ASL interpreter with him for the interview but said that for the most part, he gets by on his own with no problem; he had nominal hearing in one ear and he was excellent at lip reading.
Sid certainly was qualified on paper, and he had a strong recommendation from the trade school, but Linda balked at having a deaf employee working in the machine shop. The shop noise made communication difficult enough, and she was sure it was a safety hazard if employees couldn’t hear each other. Instead of rejecting him out of hand, Linda consulted with Dr. Opine, Acme’s occupational physician. “There’s no way this guy could work as a machinist without being constantly accommodated,” Dr. Opine said. With this, Linda was fairly sure Acme could legally refuse to hire him.
But to assuage her own uneasiness, she called the local hiring hall of the machinists union for an opinion as to whether a deaf person could safely do the job. Steve Steward, the president of the local, offered a gruff “heck no” and said the union had “plenty of qualified, able-bodied guys from our training program; we’ll send one over.” Finally, Linda called her cousin, Yolanda Yells, to get her thoughts, remembering that Yolanda had a deaf boyfriend with whom she’d recently broken up. Yolanda said in no uncertain terms that her ex was a good-for-nothing jerk, and, if Sid was anything like her ex, she’d steer clear of him.
Linda didn’t want to chance it; she politely told Sid that while he had strong qualifications, she couldn’t compromise safety. Instead, she hired her second choice, Harry Hears. It only took a few months, though, before Linda could say, in no uncertain terms, that Harry was a good-for-nothing jerk whom she should have steered clear of. Yet Acme had already sunk a good deal of money into training him, so she was stuck with him. While lamenting her fate one day, she got an irate call from Ken Stickler, Acme’s lawyer. “I‘ve got an ADA lawsuit sitting on my desk,” Ken said. “And I’m not happy about it.”
A labor and employment analyst’s response:
I don’t know whether Sid would have been able to do the machinist job safely. Neither did Linda or Dr. Opine or Steve, or certainly not Yolanda. Linda and the others made an error in judgment that’s all too common: she made unfounded assumptions about an individual’s ability to perform the job based on stereotypes about his disability.
Under the Americans with Disabilities Act, an employer is required to make an “individualized inquiry” into whether a job applicant is able to perform the job, either with or without accommodation. Instead of posing the question directly to Sid, Linda sought out advice from third parties, who offered their opinions without personal knowledge of Sid, the extent of his impairment, and the specifics of the job he had applied for. The key issue isn’t whether “a deaf person” could work as a machinist; it’s whether Sid could perform the specific machinist position that Acme was looking to fill.
Sid seemed to have fared well in trade school, so his impairment might not have impacted his ability to perform the job at Acme. Linda should have engaged in “the interactive process” with Sid to see what accommodations, if any, would be necessary for him to do the job safely. Sid might have been able to suggest some very simple modifications or assistive devices that would enable him to safely work in the machine shop. If the proposed accommodations would have posed an undue hardship to Acme, the company would not be obliged to provide them. But, at minimum, it had to seriously consider them.
Linda said the machine shop was so noisy that it was already difficult for employees to communicate with each other, so Sid’s impairment would create an even greater hazard. But the fact that the machine shop was noisy probably meant employees already communicated with each other quite frequently through nonverbal means. Does the job description identify the ability to hear as an essential function of the machinist position? These are the kinds of factual inquiries a court of law would make in evaluating whether an employer fairly considered a disabled individual’s qualifications to perform the job sought.
Why didn’t Dr. Opine examine Sid before rendering an opinion as to his qualifications? Was the physician suggesting that Sid posed a direct threat to himself or his coworkers and that the threat could not be eliminated by providing an accommodation? If so, Acme bore the burden of showing that Sid would have posed such a threat. If not, then Dr. Opine’s conclusion that Sid would have to be “constantly accommodated” didn’t mean Acme was in the clear. Opine did not disqualify Sid; merely requiring an accommodation doesn’t rule out a candidate.
The fault does not lie solely with Linda, of course. Acme’s human resources office, one presumes, would have known how to evaluate Sid’s qualifications without running afoul of the law. Yet Acme let Linda loose without explaining the legal nuances of hiring. The company’s negligence in this respect could well prove costly.
Lisa Milam-Perez, J.D., Labor and Employment Analyst
Wolters Kluwer Law and Business, (773) 866-3908, [email protected]
Reader responses:
It seems that Linda actually ignored the only truly informed opinion, that of the trade school. They deal with machinists, and understand what is needed to be a good one. They gave Sid a good recommendation. The hall steward and her cousin both had their own agendas, with no useful information to share at all concerning Sid. Dr. Opine fell down on the job by not examining both Sid and the job to determine if Sid could do the job safely. Then again, it might just be that Linda did not understand what the good doctor was saying, as he did not really render an opinion; just a statement that "accomodation would be needed". The question legally is whether a person can do a job with "reasonable" accomodation.
As for the noisy shop, I agree that this might be a benefit for Sid, since everyone else would be working on a more or less level playing field as him. Also, machinists work heavily with written instructions or drawings; bad hearing does not affect such communication methods. I don't know whether Linda was HR or a machine shop supervisor, but both HR and the mchine shop supervisor, at the least, should have been involved with this hire. At this point, all Acme can do is "pay the man".
Phil Grimes