The case of the silent forklift

Acme serves up a roadblock that prevents a disabled worker from bettering himself

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?

An attorney says:

This one’s a bit of a puzzler. I can’t admit to being an expert on forklift operation, but if OSHA regulations require communication between the forklift operator and anyone in the area, nothing in the Americans with Disabilities Act (ADA) supersedes OSHA regulations.

Based on the facts set forth, however, it doesn’t appear that Joe, with his lip-reading ability, had any difficulty communicating. In that regard, it seems that he might have an advantage in communicating with co-workers in a noisy environment. The background noise wouldn’t impede his ability to communicate, as it would the ability of a person who could hear.

The real issue is whether some safe alternative existed for Jose to communicate while operating the forklift. Under the ADA, this search for an alternative is called “reasonable accommodation,” and the courts require an earnest “give-and-take” between an employer and an employee to determine if reasonable accommodation is possible. Ray made no attempt at this. At the very least, he should have consulted human resources or obtained legal advice on the company’s responsibilities in this situation.

What seems most unforgivable and least humane is Ray’s treatment of Jose after Jose submitted the training form. It’s difficult to envision that Ray treats other employees this way -- keeping them at work for long hours on one day and telling them not to come in the next. While Jose’s accommodation claim may be questionable, he has a good shot at winning a claim for constructive discharge. Ray needs sensitivity training, just for starters, with a follow-up crash course on the ADA.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A corporate consultant says:

I suspect that OSHA and other regulations exist that are directly on point with this case. My response will focus on the behaviors manifested in the case.

As for Jose, had he thought about it, he could probably have predicted that Ray wouldn't approve the forklift training. His best bet may have been to check first with ADA to learn whether any similar cases existed. If there were such cases, and they had been resolved favorably for the employee, that would have provided Jose with a much stronger starting point. If no such cases existed, Jose may have been wise to check with human resources before alerting Ray to his desire to transfer. At a minimum, this would have involved a third party in assessing Jose's ability to operate the forklifts, and would have imposed some level of scrutiny on Ray's retaliatory behavior.

As for Ray feeling betrayed when he became aware that Jose wanted to move up, this is simply an adolescent reaction. If Ray was accurate in stating that OSHA requirements prohibited Jose from operating a forklift, despite the sophisticated level of supporting technology, then Ray had no other choice but to deny Jose's request. A good manager would have spent a bit more time with Jose, inquiring as to the impetus for the request, and attempting to find another way to satisfy it.

Before beginning to change Jose's hours, Ray should have had a discussion with Jose about why and how frequently his hours would need to change, so that no discriminatory liability could accrue to Acme. Apparently, it was more important to Ray to vent his adolescent feeling than it was to maintain fiduciary vigilance on behalf of Acme. Although it's true that absent such an explanation from Ray, Jose could have sought a discussion with him, or failing that, with human resources, it isn't necessarily Jose's responsibility to initiate internal action regarding improper or unfair management. It is Acme's responsibility to ensure that improper or unfair management doesn’t occur.

I don't buy the fact that this case was actually about the forklift incident. Instead, I believe this situation became a case due to Ray's immaturity.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:

There are a couple of issues here.

The first issue is whether Jose was eligible to run a forklift. Many companies prohibit deaf people, as well as those with other disabilities, from operating a forklift for safety reasons. However, other companies allow it. Acme should have undertaken a thorough job analysis for the forklift job (and presumably for other jobs) to determine the specific requirements needed to perform the job. This would include the hearing level necessary for the job and for compliance with OSHA (and ADA) regulations. Those specs should be then posted as part of the job requirements.

That procedure would have clarified the situation both for Jose and for Ray, and avoided much of the mess in which Acme currently finds itself. Both would know from the job analysis what hearing level is required. If Jose met the requirements, he then would be eligible to apply for job. If not, he doesn’t have much of a case.

The second issue is Ray’s treatment of Jose after the forklift discussion. It appears that Jose was treated differently after the discussion than before they talked, and this situation reeks of harassment. Somebody needs to explain to Ray and explain that such behavior isn’t legal and that he should stop it immediately.

The final question is whether a clerk should have access to payroll information? Most job titles with their respective salary ranges are posted somewhere and usually are common knowledge. Certainly pay ranges would be listed when job openings are posted. So Jose’s discovery of what forklift operators make is probably discovering something that everyone else knew already. Any other information about personnel should be kept in confidence in the human resources offices.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

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