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Mar 07

HR & Employment News

Posted by Eric Metz on Thursday, March 07, 2019

Deaf Applicant for a Parking Valet Job? Security Guard With Bad Back Who Can’t Walk His Patrol Rounds? Beware the ADA!

The Americans With Disabilities Act (ADA) requires employers to reasonably accommodate employees and applicants with disabilities unless the employer can demonstrate that doing so would create an undue hardship. The ADA also requires employers to engage in an interactive process to determine if a reasonable accommodation for a given employee is available. Both the employer and the employee must enter in this process in good faith. A recent federal lawsuit and an EEOC settlement demonstrate the scope of these duties.

The Security Guard Who Can’t Walk His Patrol

In a case in federal court in Kentucky (Todd v. Covenant Security Services, Inc. ( W.D. Kentucky 2018), a security guard who claimed that his employer failed to accommodate him under the ADA and failed to enter into the interactive process was allowed to go to trial, despite the fact that the court found that his patrol rounds were an essential function of his job, and the security officer could not walk his rounds due to a back condition.

The plaintiff was employed as a security guard for approximately six years. For the first few years of his employment, he both walked patrol rounds and drove a vehicle for rounds. Approximately four years into his employment, the plaintiff suffered a disabling back issue. His hours were lowered and he was allowed to take additional breaks.

Approximately ten months before his termination, the employer sent an email to all security guards indicating that the employer was implementing a program that required all guards to perform patrol rounds. The plaintiff requested various accommodations, one of which was being provided some kind of mobility device to use to make rounds inside the plant. While the plaintiff’s employer temporarily excused him from performing some walking patrol rounds by having another officer handle them, the employer later indicated that the other employee no longer wished to perform all of the walking patrols. The plaintiff’s employer denied all of the accommodations requested, indicated that the plaintiff could not perform the job duties, and terminated the plaintiff. The plaintiff claimed that he was discriminated against under the ADA, as he could perform the job with accommodations. Plaintiff also claimed the employer did not engage in the interactive process as required by the ADA.

While the court found that walking patrols were an essential function of the job, the court found there was an issue for trial as to whether the plaintiff’s requested accommodations were reasonable, and whether he was qualified for the position of security officer. The court found that the employer’s rejection of the suggestion of a mobility device for safety reasons was “suspect”, given that the employer permitted security officers to walk patrols where there was a heavy volume of vehicles and foot traffic, and there was no indication that the employer considered any mobility devices to accommodate the plaintiff.

The district court also found that the employer failed to enter into the interactive process with the plaintiff, as no one met with the plaintiff regarding his reasonable accommodation requests for approximately seven months after making his requests. Also, it appeared the employer had already hired someone to replace the plaintiff before they met with him to discuss his requested accommodations.

The Deaf Applicant For A Parking Valet Job

On February 27, 2019, the EEOC announced it had reached an agreement with a valet parking company to pay $150,000.00 to settle a disability discrimination lawsuit brought by the EEOC on behalf of a deaf applicant. The EEOC indicated that its lawsuit claimed that the valet parking employer violated the law “by refusing to hire a deaf applicant for a valet attendant position based on the assumption that a deaf person could not perform the essential functions of the job rather than conduct an individualized assessment of his abilities.”

In addition to paying the $150,000.00, the consent decree requires the valet company to: affirmatively recruit applicants who are deaf and hearing impaired; add TTY capability its discrimination hotline; change the essential qualifications of the valet attendant position to make clear that the job can be performed by anyone who can effectively communicate with customers, whether verbally or in writing; educate its workforce on disability discrimination through annual management and employee training; and report to the EEOC periodically.

The EEOC stated it “will continue to fight for deaf job applicants’ rights under the ADA to be provided an interpreter when they are interviewed for employment.”

Takeaways

These are two examples of the scope of an employer’s obligations under the ADA. While it may seem reasonable that a deaf person cannot perform the duties of a parking lot valet’s job, or that a security officer that cannot walk his patrol rounds is not qualified for his job, these two cases demonstrate that additional inquiries must be made. Also, the ADA requires that the interactive process must be entered into by the employer in good faith before making job decisions.

If you have questions regarding the ADA or any other employment matters, do not hesitate to call or email Eric Metz at 316-630-8100, ebmetz@twgfirm.com.

This email is intended as an information source for the clients and friends of Triplett Woolf Garretson, LLC. Its content should not be construed as legal advice, and readers should not act upon information in its contents without professional counsel.


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