Keep an eye on the road

In this edition of In the Trenches, Acme's driver disqualification criteria collide with the EEOC.

Acme’s larger orders and out-of-town shipments were contracted out to long-distance carriers, while its own fleet of trucks delivered smaller orders directly to local customers.

Acme considered itself to be a good corporate citizen and sought to comply with all safety laws. The company had objective statistical data from several sources showing that drivers with reduced vision could pose a threat to public health and safety. Acme screened its drivers carefully rather than simply rejecting vision-impaired applicants for driver positions. Acme used individual on-the-road assessments of each applicant and a vision test to determine the applicant’s suitability for a driver position. This arrangement helped to minimize the cost of Acme’s vehicle liability insurance and also protected the public.

One applicant, Roland Dadize, had monocular vision. Monocular vision results in decreased peripheral vision and impairs depth perception. Depth perception at a distance often isn’t impaired, however, because the vision-impaired individual can rely on other cues, such as shadows and highlights.

Roland scored high on all of Acme’s pre-employment tests and had a solid employment history, driving a small delivery van for a local company. However, Roland failed Acme’s vision test because of his monocular vision.

The most obvious way to avoid this situation would be for Acme to follow DOT standards.

– Professor Homer H. Johnson, Ph.D.

Because many of Acme’s trucks weighed less than five tons, certain drivers were exempt from the most restrictive Department of Transportation certification requirements regarding visual acuity. The company used this exemption to accommodate its vision-impaired drivers, assuming they could pass Acme’s driver assessment. Over the years, Acme rejected several vision-impaired candidates for driver positions.

The United States Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Roland and similarly-situated applicants, alleging that Acme denied them jobs in violation of violation of the ADA.

How could this situation have been avoided? How should a company strike a proper balance between public safety and employment discrimination claims? Would it be better to uphold strict job standards for every class of applicant if public health and safety are at stake?

A plant engineer says:

This situation could have been avoided if the EEOC and the ADA were more comprehensive in their scope as it relates to the real world. What if Acme had hired Roland and, after three months on the job, he hit and killed a small child. Then Acme would have to explain why a person with vision impairment was driving one of its trucks. In this case, I doubt that the EEOC and ADA would help Acme with the lawsuit that is bound to result. Acme would be put in a terrible position.

I believe Acme has proven to have a good balance between public safety and employment discrimination. This policy seems to be consistent because of the statement that Acme had rejected several vision-impaired candidates for driver positions in the past. Acme must make a decision about which vision impairments are considered too serious for applicants to be considered for driver positions. Someone with less than 20/20 vision is somewhat impaired, but someone who has a decreased peripheral vision and impaired depth perception might be too dangerous to drive the trucks. This should be Acme’s decision.

Acme made the choice to continue with a documented safe-driver group instead of placing someone behind the wheel of its trucks who has a problem that would comprise the safety of the public every time he drove. Who would you rather have driving the trucks down the street where your children play? This is where the EEOC and the ADA are off-base, in my opinion. If the disability of an individual places the safety of others at risk, is it not wrong to place the disabled person in the job and risk the safety of others, regardless of the position?

Jeffrey L. Strasser
Bacova Guild
(540) 863-2656
Strasser.Jeff@bacova.com

An academician says:

To protect the safety of the general public, the Department of Transportation (DOT) sets minimum vision standards for truck drivers. However, some companies permit a waiver of the DOT standards for drivers of small trucks and accept for employment a driver who doesn’t meet the exact DOT requirements. It’s mainly companies that employ a large number of drivers, such as the delivery services, that permit this waiver. I assume (but don’t know for sure) that the reason for the waiver is that it broadens the pool of possible job applicants for those companies that hire a lot of drivers.

However, the waiver is a bit tricky. The company could open itself up to numerous law suits as well as outrageous insurance premiums if the waiver allows drivers on the road that might be unsafe behind the wheel. Therefore, companies that use the wavier usually collect a lot of statistics on what level of vision leads to safe (and unsafe) driving behavior, and incorporate these statistics into the vision standards that they require for their drivers.

Companies, such as Acme, that use the waiver concept are attentive to public safety, as they should be, and don’t hire drivers whose statistics show that they would engage in unsafe driving. Public safety is their first obligation, and the hiring of the “disabled” should not jeopardize this obligation. The most obvious way to avoid this situation would be for Acme to follow DOT standards. That way EEOC’s issue is with DOT, not with Acme. Given that Acme wants to keep the waiver, making the vision standards public would probably help in that applicants would know in advance if they qualify (assuming they have taken a recent vision test). However, I’m sure that some applicants would argue that they are safe drivers, even though they fail the tests.

Does Roland have a case? Probably not. Assuming that Acme has some solid data to back up their standards, public safety will overrule aid to the disabled in this case.

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

An attorney says:

Acme faced the proverbial “Hobson's choice:” hire a vision-impaired applicant for a driver position and risk a law suit when someone is injured or killed in an accident caused by the afflicted driver, or not hire drivers with vision problems and risk ADA suits by the rejected applicants and the EEOC.

When faced with these two unappealing alternatives, I’d always recommend that an employer opt for the alternative that saves life and limb. If a court determines that an employer erred in not hiring an applicant, that error can always be rectified by the payment of money. But if someone is killed as a result of a driver whose vision problem caused an accident, no amount of money can undo the loss of life.

That being said, employers need to act with caution and with full information before declining to hire an individual with a medical condition that affects an ability to perform the job or poses a risk of harm to himself or others. Indeed, the ADA recognizes that an employer need not hire or retain a disabled employee who poses a significant risk of substantial harm to himself or others. But there must be both a significant risk and the harm that is likely to result must be substantial.

For example, an employer wouldn’t be justified in refusing to hire an applicant with epilepsy controlled by medication to the extent that the applicant averages a seizure once every two years to sit at a desk in an office as a purchasing manager. These facts pose no significant risk, and the harm the individual is likely to suffer might be no worse than falling off his office chair while having a seizure. On the other hand, an applicant with uncontrolled and frequent seizures shouldn’t be hired in a position as a circus tightrope walker. In that scenario, the risk of injury is high and the likelihood of substantial harm is great.

Employers also should guard against acting on the basis of a stereotype. One example of a stereotype would be to assume that no one with epilepsy could safely work in a manufacturing plant. Many jobs in a manufacturing plant could be safely performed by a person with epilepsy; some could not. In each case, an individualized inquiry should be made about the applicant's condition and the duties of the job in question.

There’s a fine line to walk, but a careful and conscientious employer will make hiring decisions based on all the facts and, ideally, after seeking legal advice.

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