In The Trenches: High-performing Acme employee fired for poor eyesight

Jan. 25, 2007
After numerous attempts to land a job at Acme and eye surgery, a high-performing Acme employee is hired and then fired for poor eyesight. Find out the details in our monthly In the Trenches, where only the names have been changed to protect the innocent.

Even though business was picking up, Acme management still wasn’t happy. Too many long-term employees from every level were retiring or otherwise leaving the company to pursue more interesting endeavors. The result of the exodus was good for many who stayed. Current employees were being promoted to fill the holes in the lineup. This left Acme with the problem of repopulating the lower-tier positions.

With the busy plant now behind schedule and shorthanded, Acme adopted the expedient policy of hiring just about any warm body that appeared to be trainable. The thinking was that new hires could learn everything they needed to know on the job.

Fortunately, Acme realized this sort of thinking was very wrong for many reasons. The company then adopted a brand new policy that declared any employee destined for a manufacturing position must be able to pass a series of tests designed to evaluate practical job knowledge and physical health. (The matter of what to do with the new hires already on the payroll was left for another day.)

Sonny Skye was one of the first to apply for a plant job under the new guidelines. Despite a near-perfect score on the practical testing, he was turned down because of his extremely poor eyesight. A year later, he again tried to qualify for a job at the plant, but was turned down despite near perfect skill scores.

Again, the reason Acme gave was that he was nearsighted.

A bit more determined this time around, Sonny underwent elective LASIK eye surgery, which he paid for himself. Four weeks later, when his vision had restabilized, he again approached Acme and, this time, managed to convince the HR department to dispense with another set of skills tests and to hire him if he could pass the vision test. It was stipulated that Sonny would have one month on the day shift to prove he was capable, after which his permanent position would be on the night shift, which had a disproportionate share of the job vacancies. At long last, in November, Sonny finally got himself on the Acme payroll. The best part, from his point of view, was that he could take public transit from his home to within one block of the factory entrance.

Sonny was assigned to the material handling team, where his job was to drive a forklift and shuffle loads from building to building on Acme’s sprawling facility. It took him less than a week to learn the plant layout well enough to discard his carefully annotated, hand-drawn plant map. Sonny was determined not to blow his big break. He was careful to keep the vehicle and its loads within the forklift right-of-way marked on the pavement that connected the loading docks on each building. He was careful to halt at the stop signs posted at intersections. He was careful to make sure he kept busy moving things.

Ray Diehl, his day foreman, sent a memo to HR recommending that Sonny be transferred to the night shift and added a great deal of praise for Sonny’s work ethic, saying that it was a shame to have to release such a good worker from the day shift.

After his transfer, Sonny’s productivity decreased. He had troubles seeing the pavement markings, stop signs and pedestrian traffic in the plant complex. He reported this to Manny Towach, the night shift foreman, who moved him to a desk job in the well-lit office area to do clerical work. A few weeks later, his status was changed to permit only daylight driving. This was difficult for someone assigned to the night shift. Nevertheless, he persevered and his pencil-pushing performance exceeded expectations, a fact that Manny made sure to note in Sonny’s personnel files.

Sonny had a comprehensive eye examination to identify the source of the problem that prevented him from doing the job he loved. The diagnosis was congenital stationary night blindness, a condition that can’t be remedied, but won’t deteriorate. When Acme received a copy of Sonny’s medical report, the company made the day driving restriction permanent. But it was the night shift that needed drivers, and Acme ordered Manny to terminate Sonny because he couldn’t perform the job for which he was originally hired. In response, Sonny sued Acme, claiming that his was a case of disability and discrimination.

How could this situation have been avoided? Was Sonny too inflexible and unrealistic in maintaining his driving desire to drive a forklift? To what extent is Acme obliged to accommodate a condition that prevents a worker from performing the job for which they were hired? Could Sonny be accused of deception for accepting a night shift job in light of what he probably already knew about his abilities to drive in darkness? Should Acme’s vision test have included night vision? Since it didn’t, is Acme required to place Sonny in a position that requires only the tested capabilities? Since Sonny did so well during the day shift, wouldn’t it be wise to keep him at the desk job until there was an opening on the day shift or ask for a volunteer from the day shift to move to the night shift? Shouldn’t Acme’s tests been more oriented toward the night shift position to avoid the problem altogether? Should Acme have better investigated his LASIK surgery and the possible side effects before hiring him?

A corporate consultant says:

Let's set aside any possible legal issues for a moment - myriad though they may be. Even if Acme was within its rights to terminate Sonny because he didn't qualify for the shift for which he was actually hired, Acme is shooting itself in the foot here.

Of course, Sonny shouldn't be allowed to drive on the evening shift - but he had demonstrated superior performance in two other important functional areas: driving on the day shift and clerical work on the night shift.

Despite being shorthanded, and in a tight labor market, Acme apparently made no effort whatsoever to try to retain Sonny. They're “hiring just about any warm body that appeared to be trainable.” So, why are they letting go an employee who has received nothing but stellar reviews from two different supervisors? Did it ever occur to them that someone on the day shift might be willing to switch shifts with Sonny? Even if no one wanted to switch with him, isn't Acme better served by moving a day shift employee to the night shift to have two employees rather than one? Alternatively, did it ever occur to them to negotiate with Sonny to take the night shift clerical position until a day shift driving position came open?

Whether Acme wins the legal case or not, whoever decided to terminate Sonny isn't seeing the forest for the trees, sees things in black and white, and has no ability to problem-solve. How did such a person get a management position?

An equally perplexing question is why Acme wouldn't have exercised more care in qualifying someone who had a history of not one, but two previous employment applications that were rejected because of poor vision. Given his history of vision problems, why would the one month probationary period be during the day - particularly because the night shift was the one short of personnel?

Acme's actions may indeed be legal - but it's also legal to jump off a cliff.
Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
[email protected]

An academician says:

There are a couple of issues here. The first is whether Acme should have known that Sonny had a disability that would prevent him from driving at night. The second is whether they have any obligation to keep him on-board now.

As to the first issue, Sonny’s vision problem should have been a red flag regarding his ability to drive. The job requirements for the fork lift operator should have specified the level of vision needed to drive the vehicle both during the day and night. And whatever vision test Acme used should have picked up that Sonny didn’t have that level of vision and wasn’t qualified to drive during the night.

As to the second issue, does Acme have any obligation to retain Sonny as an employee? My guess is yes. This doesn’t mean that they have to bump someone on the day shift to make room for Sonny. Under ADA rules, or at least my reading of them, Acme has to make “reasonable accommodation,” which means that they have to provide a job that Sonny can handle. They did so by assigning Sonny to a clerk’s job. So, for me Acme goes one for two on this one – they need to polish their hiring procedures, but recovered nicely by finding him a clerk’s job.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
[email protected]

An attorney says:

Who wins this case, in all likelihood, depends on where Sonny has sued Acme. The duty to accommodate a disabled employee under the Americans with Disabilities Act (ADA), the federal law that prohibits discrimination against the disabled, differs from the duty of accommodation under some state laws.

A threshold issue in this case is whether Sonny’s night blindness constitutes a disability under either federal law or the state law under which he sued. Under the federal law, the ADA, a disability must impose a limitation on a major life activity. Whether the ability to see at night limits a major life activity may be subject to some debate. Assuming Sonny overcomes that hurdle, the question then arises whether Acme has a duty to accommodate him either by transferring him to the day shift or by transferring him to another position that he can perform despite his night blindness.

Under the ADA, an employer has the duty to reasonably accommodate a disabled employee unless to do so would pose an undue hardship on the employer. If Acme has no vacancies on the first shift for a forklift driver, it has no obligation to displace another employee or to create a new position for Sonny on the first shift. However, Acme does have a duty under the ADA to accommodate Sonny by transferring him to another open position he is qualified to perform. If the second-shift clerical job is open, Acme has a duty to transfer him to that position rather than terminate him under federal law.

Some state laws, however, aren’t quite so generous to employees and don’t require that an employer transfer a disabled employee to another position to accommodate him. If Sonny sued under one of these state laws, his suit will be unsuccessful.
Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
[email protected]

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