A recent case out of the United States Court of Appeals for the Fifth Circuit piqued my interest regarding a unique question. The case itself was rather mundane. In Eubanks v. Endeavor Energy Resources, L.P., 2023 WL 2612615 (C.A.5 (Tex.)), after Keith Eubanks started receiving negative performance reviews, he complained about a manager making negative comments about different employee’s disabilities. The negative performance reviews continued and a month after reporting the three comments about other employees, his employer fired Eubanks.
Now, our employee’s rights lawyers have already blogged a lot about the fact that engaging in protected activity, such as complaining about employment discrimination, will not typically create a good wrongful termination claim for an already bad performing employee. (Although any employee who believes that he/she/they have been wrongfully fired, should consult with experienced employment law attorneys).
What was interesting to me, however, was that the United States Court of Appeals for the Fifth Circuit held:
Eubanks clarified that the allegedly discriminatory events at issue included Webster’s comments regarding an employee’s colorblindness … Eubanks has shown a prima facie case of retaliation when considering the evidence in a light most favorable to him. He opposed Webster’s comments regarding various employees’ disabilities, which is a protected activity, and his termination is an adverse employment action.
Id. at 1-2. While not directly addressing the issue of whether colorblindness is a disability, the Fifth Circuit appeared to accept that color blindness may indeed be a disability. So, with my curiosity peaked, I dug in a little farther.
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Does the ADA protect color blindness as a disability?
Colorblindness will most likely be considered a disability under Americans with Disabilities Act (“ADA”). The ADA considers a condition to be a disability if it substantially limits a major life activity, such as seeing, learning, or working. Clearly, color blindness impacts the ability to see, but is a substantial limitation? The term “substantially limits” means that the impairment must significantly restrict the individual’s ability to perform the life activity as compared to the average person in the general population.
Colorblindness has been considered a disability under the ADA in some cases. Here are a few examples of case law that have addressed this issue:
- In the case of EEOC v. FedEx Ground Package Sys., Inc., 658 F.3d 424 (3d Cir. 2011), the United States Court of Appeals for the Third Circuit held that a colorblind individual was disabled under the ADA. The applicant, who was colorblind, was unable to pass the company’s color vision test and was therefore not hired for a position as a package handler. The Third Circuit held that the applicant’s colorblindness substantially limited his ability to see, and therefore was a disability under the ADA.
- In the case of Daubert v. United States Postal Service, 707 F. Supp. 2d 718 (E.D. Mich. 2010), the United States District Court for the Eastern District of Michigan held that a postal worker’s colorblindness was a disability under the ADA. The employee, who was colorblind, was unable to sort mail based on color-coded labels and was therefore reassigned to a lower-paying position. The court held that the employee’s colorblindness substantially limited his ability to work, and therefore was a disability under the ADA.
- In the case of Schmitz v. United States, 38 Fed. Cl. 328 (Fed. Cl. 1997), the court held that a colorblind pilot was disabled under the Rehabilitation Act, which is similar to the ADA but for federal employees. The plaintiff, who was colorblind, was denied a pilot’s license by the Federal Aviation Administration (FAA) due to his inability to distinguish between certain colors. The court held that the plaintiff’s colorblindness substantially limited his ability to perform a major life activity (flying), and therefore was a disability under the Rehabilitation Act.
However, there have been cases where the court found that the plaintiff’s color blindness did not substantially limit a major life activity, and therefore did not meet the definition of disability under the ADA. In such cases, the plaintiff may not be entitled to the protections and accommodations under the ADA.
For example, in the case of Enyart v. National Conference of Bar Examiners, 630 F.3d 1153 (9th Cir. 2011), the Ninth Circuit Court of Appeals held that a law school graduate’s color blindness was not a disability under the ADA. The plaintiff had requested an accommodation to use a special monitor to take the bar exam, but the request was denied. The Ninth Circuit held that the plaintiff’s color blindness did not substantially limit his ability to see, learn, or work, and therefore was not a disability under the ADA.
Similarly, in the case of Buck v. City of Los Angeles, 7 Cal. App. 5th 919 (Cal. App. 2d Dist. 2017), the California state court of appeals held that a police officer’s color blindness was not a disability under the ADA. The officer had been fired after failing a color vision test. The court found that the plaintiff’s color blindness did not substantially limit his ability to see, learn, or work, and therefore was not a disability under the ADA.
Overall, while courts have generally been more likely to find that color blindness is a disability under the ADA, it is still possible for a court to find that an individual’s color blindness does not meet the definition of disability under the ADA if it does not substantially limit a major life activity. Each case will be evaluated on its own facts, and not all cases of colorblindness will be considered disabilities under the ADA.
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What does my employer have to do if I request a disability accommodation under the ADA for being color blind?
If you request a disability accommodation under the ADA for being color blind, your employer is required to engage in an interactive process with you to determine if an accommodation is necessary and appropriate. Here are the steps your employer should take:
- Initiate the interactive process: Once you have informed your employer of your color blindness and requested an accommodation, your employer should initiate the interactive process. This process involves a dialogue between you and your employer to determine what accommodations may be necessary and appropriate.
- Determine the essential functions of your job: Your employer should work with you to identify the essential functions of your job. Essential functions are those duties that are fundamental to the position and cannot be removed without fundamentally altering the nature of the job.
- Determine how your color blindness affects your ability to perform essential job functions: Your employer should work with you to determine how your color blindness affects your ability to perform the essential functions of your job.
- Identify potential accommodations: Once your employer has a better understanding of how your color blindness affects your ability to perform your job, your employer should work with you to identify potential accommodations that would enable you to perform the essential functions of your job. Accommodations could include things like modified equipment, software, or reassignment to a different position.
- Determine if the requested accommodation is reasonable: Your employer is not required to provide any accommodation that would impose an undue hardship on the business. Your employer should determine if the requested accommodation is reasonable and whether it would create an undue hardship. Factors that may be considered when making this determination include the cost of the accommodation, the financial resources of the employer, and the impact on the business.
- Provide the requested accommodation: If the requested accommodation is reasonable and would not impose an undue hardship on the business, your employer should provide the accommodation.
It is important to note that the interactive process is ongoing and should continue until an appropriate accommodation is identified and implemented. If your employer refuses to engage in the interactive process or fails to provide a reasonable accommodation, you may have legal recourse under the ADA.
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Do I have a disability discrimination claim under the ADA?
Every potential disability discrimination claim, whether a failure to accommodate, retaliation, or discrimination claim, presents different factual and legal analysis. Thus, if you even think that you might be facing discrimination or was wrongfully fired because of your disability or medical condition, you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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