According to a recent decision by a federal appellate court, the answer is "yes."
The ADA prohibits various types of discrimination against people with disabilities, but perhaps its biggest impact is in the area of employment. The ADA applies to any business with 15 or more employees. Among other things it prohibits discrimination in employment actions such as hiring, job assignments and promotion, against those with a disability.
One problem with the statute is a rather vague description of what is a disability. Generally it is defined as "any physical or mental impairment that substantially limits one or more major life activities... or a person who is perceived by others as having such an impairment." The ADA does not list the physical or mental impairments covered by the ADA. This lack of precision in definition can lead to lawsuits such as the one involving the overweight truck driver and dockworker.
The individual in the case described above had been working for the motor carrier for five years as both a driver and a dockworker when he injured himself while climbing a ladder on the job. The facts get complicated, but after a period of convalescence he came back to work for a short while, but then took a leave of absence, allegedly to further recuperate. The motor carrier told him before he took the leave of absence that its policy was that if a leave of absence exceeded 180 days he would be terminated. The employer also required that the employee have a release from a doctor before returning and could be asked by the trucking company to be examined by its physician.
When the employer's doctor examined the worker he found various problems including, most notably, that the worker weighted 405 pounds. The court decision described this as "morbid obesity." Interestingly, at the time of his hiring five years before he weighed 345 pounds.
As things would have it the motor carrier refused to take him back. The former employee filed a complaint with the Equal Employment Opportunity Commission (EEOC) saying he was terminated because of his weight and this violated the ADA. The EEOC filed a suit on his behalf in a federal court. After losing at the trial court the EEOC appealed and lost on appeal. The appellate court found that obesity does not have a "physiological cause" meaning basically that it was not caused by a particular medical problem, therefore, the court held, it was not a disability covered by the ADA. Certain disabilities such as the inability to see or other limitation on sight, as well as hearing, talking, walking, performing manual tasks, etc. are clear disabilities under the ADA.
One misconception about the ADA is that an employer is required to hire someone with a disability if he or she applies for a job. This is not necessarily the case. An employer may not discriminate against someone with a disability in making a hiring decision, but the employer is free to hire the most qualified applicant. From the hiring standpoint it may be best if the employer has a written job description. Each person can then be judged on whether he or she meets the qualifications.
An employer should be prepared to make what the ADA describes as " reasonable accommodation" for those with a disability. How far an employer has to go to be "reasonable" in making an " accommodation" is somewhat vague. But it has been held that fairly easily restructuring a workplace, equipment or lighting changes, as well as modified training are reasonable accommodations.
The EEOC has also said that under the ADA an employer is only required to accommodate a known disability. While in a job interview or application process a prospective employer may not ask an applicant about a disability, there may be an obligation on the part of the applicant to raise the issue of an accommodation for a disability that is not obvious. Often the job applicant or employee can suggest a type of accommodation that will satisfy everyone under the ADA. An employer does not have to make an accommodation if it were to impose an "undue hardship" such as requiring significant expense.
The ADA can raise many issues for shippers, carriers and others in the supply chain. The key to compliance is planning ahead. As the trucking company with the overweight driver learned, winning an ADA court action can be lengthy and costly.
|James A. Calderwood is a partner with the law firm of Zuckert, Scoutt & Rasenberger, L.L.P., in Washington, D.C., where he concentrates on transportation matters. He can be reached at [email protected]. This column provides information of general interest. It cannot substitute for in-depth legal analysis of particular problems. Readers are urged to seek counsel concerning individual situations.|