Acme runs into trouble with a potential hire's health

Acme learns that being concerned about someone's health can backfire

Acme Aggregates manufactures, among other things, colored granules to tint roofing shingles and siding. The plant makes them by grinding chunks of slag, a waste by-product from mineral processing, then classifying the pulverized material to recover particles that are just the right size. After coloring and curing, they're packaged and shipped to manufacturers across the country.

With any grinding operation, dust is a fact of life. Fortunately, it's benign, not toxic like coal, asbestos, silica or radioactive dusts. The process may leak only one-tenth of one percent, but running 100 tons per hour still produces 1,600 pounds of dust per shift.

The gray material lies thick in dark corners. Horizontal pipes and structural steel look as if they have a gable roof. The dust masks the true outline of every stationary item in the building. Floating particles catching the sunbeams that filter through the overhead windows sometimes appear as a gentle snow and, once in a while, like a raging blizzard.

Even before Acme upgraded its ventilation system years ago to meet evolving air quality standards, the plant began providing personal protective gear for employees, but the jackets, respirators, head coverings and masks are cumbersome, and on hot days, downright uncomfortable. And the work involves a certain measure of physical efforttossing around 50-pound sacks of product, sweeping spilled material from conveyor transfer points and shoveling spilled slag back into grinding mills.

Acme is now looking for a few good employees. In response to a job ad in the local paper, Pete Treedisch, a 37-year old ex-GI, appeared at the HR department to apply for one of the factory jobs. After a thorough interview and, based on his qualifications, Rose Aichia, Acme's HR manager, extended Pete a job offer, contingent on his passing a standardized physical examination by a doctor at a clinic serving most of the plants in the region.

When Pete went for his physical, Ben Dover, one of the two physicians at the clinic, learned that Pete had a history of asthma. But Pete's case was only one of 35 exams Ben administers on any given day, and the good doctor merely checked the box that indicated Pete is medically able to perform the basic job functions, subject to the accommodations listed at the bottom of the form. In the space provided there, Ben added a note to indicate that this worker has asthma and might have a problem working in a dusty environment.

The clinic secretary faxed a copy of the medical examination report to Acme's HR department. The next morning, after reviewing the document, Rose annotated the front page of Pete's job application with "Asthma, can't work near dust and fumes," and forwarded a photocopy of the top page to Hank O'Hare, the head of the department that desperately needed warm bodies. When Hank saw the notation, he was disappointed, but knew Acme couldn't hire people whose jobs would likely make them too ill to work. Consequently, he called Pete's cell phone and left a voice mail with the bad news that he would not be hired because the medical exam uncovered a pre-existing condition incompatible with the work in the plant.

Pete called Hank to discuss the message. Hank explained that there was no dust-free location in the entire plant. Pete asked about an office job. Hank replied there were no openings available in the office, but that he should stay in touch with Rose, just in case.

After spending the better part of a year flipping patties at a local no-name greaseburger palace, Pete filed a discrimination charge against Acme, claiming disability discrimination.

Should Acme have hired Pete? How would you have handled this situation?

A corporate consultant says:

At last! A case in which Acme seems to have behaved admirably!

Given the conditions in the plant and the doctor's caveat, I'd not have hired Pete either. His ability to perform the functions of the job can't be assessed exclusive of the environment in which the functions would be performed, anymore than one's ability to work with anthrax can be assessed exclusive of cleanroom requirements.

The only modification I would suggest to the way Acme's handled this case would relate to the way in which Pete was notified of his rejection. A formal letter from Acme rather than a voice mail message would have been my approach. Attached to the letter would have been the form completed by the doctor, and the letter would state that the decision not to hire was based on medical advice. Providing this documentation to Pete may have been adequate to convince him of the futility of litigation.

Francie Dalton

Dalton Alliances, Inc.

410-715-0484

fmdalton@daltonalliances.com

An attorney says:

As so often is the case with Acme, the company's knee jerk reaction may not have been the best way to handle this situation.

The threshold question here is whether Pete's asthma constitutes a "disability" under the Americans with Disabilities Act. If it doesn't, Acme was perfectly within its rights in rejecting Pete for employment. Courts have taken the approach that an individual's condition must impose a substantial limitation on a major life activity before that condition qualifies as a disability. Breathing clearly is a major life activity, but our scenario does not provide enough information about Pete's asthma to know whether his asthma creates a substantial limitation on his ability to breathe.

If Pete is protected under the ADA, Acme made a snap judgment based on the examining physician's comment that he "might" have a problem working in a dusty environment due to his asthma. This comment does not reflect that Pete cannot perform the job or indicate that there is no reasonable accommodation that would permit him to do so.

Acme should have obtained additional medical information, either by questioning the examining doctor, contacting Pete's treating physician, who probably is most familiar with his condition, or seeking an opinion from a specialist. If this additional medical information indicated Pete would have a problem working in Acme's dusty environs, the next issue Acme should have confronted is whether some type of accommodation would permit Pete to work in the plant. The obvious accommodation might be personal protective equipment or a respirator.

By acting so precipitously, Acme may have done both Pete and itself a disservice. Acme may have passed up an excellent worker for no reason.

One final comment is in order here. If Pete spent the better part of a year flipping burgers, it may be too late for him to pursue any legal claim against Acme for disability discrimination. Under federal law, an employee or applicant has up to 300 days to file a charge of discrimination with the Equal Employment Opportunity Commission. Many state laws require charges to be filed within 180 days from the wrongful act.

Julie Badel, Partner

Epstein Becker & Green, P.C.

312-499-1418

jbadel@ebglaw.com

An academician says:

I don't really see the basis for Pete's charge. The ADA says that a company has to make "reasonable accommodation" for a disabled person, but doesn't have to restructure the job. If Pete's complaint is that he wants to work in a plant area loaded with material that would be injurious to his health, then the company has a clear reason not to hire him. If he wants to work in the office, which has no openings, the company isn't obligated to create one just for Pete or any other person who wants to work there.

It looks to me as if Acme followed standard procedure and didn't in any way act in a discriminatory fashion. In retrospect, Human Resources could have pre-screened for asthma and other respiratory problems, as there are certain physical requirements for the plant job. Given that Pete told them about his problem, Acme could have counseled Pete regarding the physical requirements of the job. If either party had doubts, they also might have had Pete take the physical and asked the doctor to pay special attention to respiratory problems. Thus, the physical requirement would have been clear in the job description, and Pete would have known the physical requirements up-front and that he wasn't eligible for the job. Also, he could have been informed at that time about the availability of any other type of work at Acme.

Homer H. Johnson, Ph.D.

Loyola University Chicago

312-915-6682

hjohnso@luc.edu

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