Middle District Court of Georgia
Civil Action No. 4:05-cv-96(HL), 2007 U.S. DIST. LEXIS 72713
September 28, 2007
Keywords: disparate impact, effective communication, employment, mitigation, substantial limitation
Facts of the Case
Plaintiff Wilbur Allmond applied for employment as a Court Security Officer (“CSO”) with defendant Akal Security, Inc. (“Akal”). Akal contracted with the United States Marshal’s Service (“USMS”) to provide CSOs for Eleventh Circuit federal courthouses. At the time the plaintiff applied for the position, the USMS required that all CSOs pass a medical examination including a hearing test, which had to be passed without the use of hearing aids. An applicant who could not pass the hearing test without a hearing aid was not permitted to work. However, once an applicant passed the hearing test without using a hearing aid, the USMS permitted the CSO to use a hearing aid on the job provided the hearing aid passed a functionality test.
Upon completing the medical examination in February 2003, Mr. Allmond immediately was informed he did not do well on the hearing test, and was advised to see a hearing specialist. The plaintiff’s medical determination was deferred pending the specialist’s determination, but the plaintiff was permitted to begin working as a CSO for the defendant during this deferral. In May of 2003, after reviewing reports from both an ear nose and throat specialist and an audiologist, a specialist with the Judicial Security Division determined that Mr. Allmond was not medically qualified to perform the essential functions of the job as his hearing impairment posed “a significant threat to the health and safety of [him]self, other law enforcement officers and the public.” Despite this determination, no action was taken and the plaintiff continued to work as a CSO for approximately nine months.
In December of 2003, Mr. Allmond underwent his annual fitness for duty physical examination, which again included a hearing test, and in February of 2004 the USMS advised Akal that the plaintiff did not meet the contract medical requirements for the CSO position. Akal informed Mr. Allmond that he was medically disqualified from the position and he was terminated. Mr. Allmond filed this lawsuit against both Akal and the USMS alleging discrimination in violation of both the ADA and Rehabilitation Act.
Issue of the Case
- Whether the defendants’ requirement that applicants pass a hearing test without the use of a hearing aid screens out people with disabilities in violation of the ADA and the Rehabilitation Act.
Arguments & Analysis
As a preliminary matter, because discrimination claims under the Rehabilitation Act are governed by the same standards as discrimination claims under the ADA, the Court refers to all of the plaintiff’s claims as ADA claims. Mr. Allmond argued that he had a disability under the ADA because the defendants regarded him as having a substantial hearing impairment, and that the limitation on using a hearing aid during the medical examination was a discriminatory screening criterion that screens out people with disabilities in violation of the ADA.
The Court analyzed the case under a disparate impact theory, which the Fifth, Sixth, Seventh, Eighth, and Tenth Circuits apply when a plaintiff alleges that an employer is “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual … or a class of individuals with disabilities.” The disparate impact analysis requires a plaintiff to identify the challenged employment practice and pinpoint the employer’s use of it, demonstrate an adverse impact on himself or an ADA-protected group, and demonstrate a causal relationship between the challenged practice and the disparate impact. The plaintiff must also prove that he is otherwise qualified for the position. A business necessity defense is available to employers who can show that the challenged employment practice is “job-related for the position in question and is consistent with business necessity.”
Mr. Allmond alleged that the defendants regarded him as substantially limited in the major life activities of hearing and working. The Court determined that there were issues of fact to be determined by a jury whether the plaintiff was regarded as substantially limited in the major life activity of hearing. The Court noted that for the plaintiff to have been regarded as substantially limited in the major life activity of working, the defendants would have had to regard the plaintiff as precluded from working in a broad class of jobs, rather than being precluded from working solely as a CSO.
The defendants’ witnesses testified that law enforcement officials in general need to perform essential job functions that include the ability to comprehend speech over the phone, in person, and over the radio. The Court determined that there was enough evidence in the record from which a jury could conclude that the defendants regarded Mr. Allmond as precluded from working in the field of law enforcement. Consequently, the Court concluded that whether the defendants regarded the plaintiff as substantially limited in the major life activities of hearing and working were factual questions for a jury.
Turning to the issue whether Mr. Allmond was otherwise qualified for a CSO position, under a disparate impact analysis, the Court adopted the position of the Ninth and Sixth Circuits that the plaintiff does not bear that burden of proving he is “qualified as to the job function addressed by the allegedly illegal qualification standard.” Instead, Mr. Allmond was required to show he was “disabled and qualified to perform the essential functions of the job, absent the challenged job requirement—in this case the ability to pass the required hearing test without the use of hearing aids.” As the defendants did not dispute Mr. Allmond’s ability to perform the remaining essential functions of the CSO position, the Court determined that the plaintiff was an otherwise qualified person.
The Court next considered whether the defendants met their burden of proving the selection criteria were “job-related for the position in question and … consistent with business necessity.” This required the employer show that the selection criteria have a manifest relationship to the position in question.Additionally, applicable Eleventh Circuit precedent in Walker v. Jefferson County Home (1984) indicates that when the skill required for a position is low and the consequences of hiring an unqualified applicant are insignificant, the employer has a heavy burden to prove that the employment criteria are job-related. In contrast, when a high degree of skill is needed and there are significant potential consequences of hiring an unqualified person, the employer’s burden of proof is much lighter.
Applying these principles, the Court determined that because there are high human risks involved in hiring an unqualified person as a CSO, the defendants have a low burden when proving the requirement that employees pass a hearing test without the use of a hearing aid is job-related and consistent with business necessity. The Court concluded the defendants undertook a study of the CSO position, engaged a physician with experience in law enforcement, and “relied on objectively reasonable medical evidence.” The Court held “a distinction based on a disability is necessary to protect the health and safety of the public,” and the defendants adverse action against Mr. Allmond based on that distinction was not unlawful.
“Where … a defendant relies on objectively reasonable medical evidence to conclude that a distinction based on a disability is necessary to protect the health and safety of the public, then an adverse action taken against an employee based on that distinction is not unlawful.” The Court found that the defendants demonstrated the challenged hearing criteria were job-related and consistent with business necessity, and the defendants presented a successful defense to Mr. Allmond’s employment discrimination claim.
Policy & Practice
Burden of Proof
In the Eleventh Circuit, when an employer engages in an employment practice or utilizes screening criteria that may have a disparate impact on people with disabilities, the burden of proving the criteria are job-related and consistent with business necessity is: (1) higher when the required skill level is low and the potential consequences of hiring an unqualified person are minimal, and (2) lower when the required skill level is high and there are significant potential consequences of hiring an unqualified person.
The federal district court for the Middle District of Georgia in Allmond v. Akal Security joins other Circuits in applying the disparate impact analysis to allegations of discrimination arising from “qualification standards, employment tests or other selection criteria,” rather than a burden-shifting analysis applied to discrimination arising from the “terms, conditions, and privileges of employment.” It is not currently clear whether other federal district courts within the Eleventh Circuit apply the disparate impact analysis to Allmond-like claims.
Challenged Job Requirements under a Disparate Impact Analysis
This federal district court further adopted the position of the Ninth and Sixth Circuits that the plaintiff does not have to prove he is “qualified as to the job function addressed by the allegedly illegal qualification standard.” It is not currently clear whether other federal district courts within the Eleventh Circuit take this position.
This case is similar to the U.S. Supreme Court’s decision in Sutton v. United Air Lines (1999), where the plaintiffs claimed that the employer’s policy of requiring employees to pass an eye exam without corrective lenses was a screening criterion that screened out people with disabilities in violation of the ADA. The Supreme Court held that the plaintiffs, who had severe myopia, were not disabled within the meaning of the ADA because their impairment could be mitigated with corrective lenses. Despite similarities, the Court here did not address mitigation and left the question of whether the plaintiff was disabled for the jury.
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