Best Ohio Disability Lawyer Response: Can an employer enforce a blanket exclusion that prohibits disabled employees from working certain jobs in the company? Can I sue my boss for disability discrimination? What should I do if my manager won’t give me a disability accommodation to help me do my job?
As our employment discrimination attorneys have discussed, under the Americans with Disabilities Act (“ADA“) an employer is prohibited as a matter of law from discriminating against a disabled employee or an employee’s relationship with a disabled person in any aspect of their employment, including hiring, firing, pay, job assignments, promotions, layoff training, fringe benefits, and any other term or condition of employment. (See Can I Be Denied A Job Because Of Prescribed Medications?; Can I Sue My Boss Personally For Discrimination In The Workplace? Best Attorney Reply!; Can I Be Fired Because I Am My Disabled Mother’s Primary Care Giver? I Need A Lawyer!; Top Disability Discrimination Lawyer: Is It Disability Discrimination If My Job Will Not Accommodate My Anti-Social Disorder?). The law requires the disabled individual be qualified for the position and be able to do the essential duties of the job with a reasonable accommodation. What happens if the job description itself has a blanket exclusion prohibiting ALL disabled employees from working in the position? Is that unlawful?
This is the question posed to the United States District Court Northern District of Ohio in Siewertsen v. The Worthington Steel Company. In Siewersten, the employee suffered from a disability, namely Siewersten was deaf and had to use alternative means to communicate with his co-workers. For over ten years, Siewersten would use notebooks, hand gestures, and limited vocal responses to complete his duties as a forklift driver. In 2011, the company instituted a new policy that contained a blanket exclusion—no deaf forklift operators allowed. Period.
Needless to say Siewertsen was pushed out of his job into a menial labor position with the same amount of pay at the plant. Siewertsen filed suit against the company stating the obvious—I worked as a deaf forklift operator for over a decade, taking my job away was a violation of the ADA. Despite the fact that Siewertsen had no change in pay, the court determined that the actions of Worthington Steel violated the ADA because the ADA requires the employer to make an individual inquiry about the disabled employee’s ability to work:
“The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position.” Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000).
“A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question.” Keith v. Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013). “This follows from the ADA’s underlying objective: `people with disabilities ought to be judged on the basis of their abilities; they should not be judged nor discriminated against based on unfounded fear, prejudice, ignorance, or mythologies; people ought to be judged on the relevant medical evidence and the abilities they have.” Id. (quoting Holiday, supra, 206 F.3d at 643).
At bottom, the individualized inquiry requires the employer to consider whether the employee, despite his disability, is capable of performing the essential functions of the job.
Siewertsen argues Worthington failed to undertake an individualized inquiry.
What is an individual inquiry? An individual inquiry is a case-by-case evaluation as to whether or not the disabled employee can do the essential duties of the job. Worthington failed to make an individual inquiry- talk to the employee about the job duties, the requirements and how he could operate a forklift safely with his condition. In laymen’s terms, Worthington would have saved itself a lot of trouble if they just evaluated whether or not Siewertsen was able to operate a forklift while suffering from deafness. In this case, the inquiry would be short since he had done the very same job for 10 years!
The employer then tried to argue that the employee’s claim was barred because he did not specifically ask for a disability accommodation in response to being removed from his job under the new policy. The Court also shot this argument down:
To establish a claim of failure to accommodate, the plaintiff “must present evidence that he requested and was denied a reasonable accommodation.” Backhaus, supra, 54 F. Supp. 3d at 752.
“To provide a reasonable accommodation, an employer may be required to modify the responsibilities of disabled employee’s existing job or transfer the employee to a vacant position with different responsibilities.” Rorrer, supra, 743 F.3d at 1039 (citing 29 C.F.R. § 1630.2(o)). …
Worthington contends Siewertsen’s claim fails because he never requested any accommodation. Siewertsen counters that once the company barred him, on account of his deafness, from performing all but four positions in the plant, it would have been futile to request the company accommodate his deafness.
The ADA imposes liability on an employer’s failure to accommodate an employee’s “known physical or mental limitations.” 42 U.S.C. §12112(b)(5)(A). Consequently, “[a] plaintiff must explicitly request an accommodation, unless the employer otherwise knew that one was needed.” Jones v. Nationwide Life Ins., 696 F.3d 78, 89 (1st Cir. 2012).
It is undisputed Worthington both knew of Siewertsen’s deafness and considered whether there were any accommodations permitting him to operate forklifts and cranes. In these circumstances, Siewertsen’s failure to request a specific accommodation does not bar his failure-toaccommodate claim. Cf. Clark v. Whirlpool Corp., 109 F. App’x 750, 755 (6th Cir. 2004) (“when a request would be futile, we have excused the failure to make it when the need for an accommodation was obvious to the employer”).
In the end, when disabled employees are being discriminated against or denied work accommodations to help perform their jobs, they should not just accept it or wait to be wrongfully terminated.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at (216) 291-4744. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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