(PHOTO: SHUTTERSTOCK)
By R. Eddie Wayland , TCA Legal Counsel
The carrier in this case did not hire a deaf driver even though there were apparently many indications that the driver was qualified despite his disability. This case serves as a good example of potential pitfalls to be aware of when considering the employment applications of disabled drivers.
Background
This lawsuit was filed by the Equal Employment Opportunity Commission (EEOC) in the fall. While the case has been pending for more than two months, the carrier has not had an opportunity to present its “side of the story.” Accordingly, the facts presented below are based only on the allegations made in the EEOC’s complaint in this matter. In summary, the EEOC’s complaint states:
In 2015, the driver received an exemption from the hearing regulation of 49 C.F.R. § 391.41(b)(1) to drive a commercial motor vehicle. This exemption was provided by the United States Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA).
In 2016, the driver successfully completed commercial truck driving school in Indiana and later received his commercial driver license.
While attending driving school, the driver submitted a “pre-application” for employment with the carrier. The driver was told his application was “pre-approved” some two months later. Shortly thereafter, the carrier’s manager of student recruiting contacted the driver to explain the carrier’s orientation program. The driver indicated that he would require an interpreter during orientation.
Less than a week later, the driver was directed to call the manager of student recruiting. The driver was then interviewed by the manager of student recruiting as well as the carrier’s vice president of safety and compliance. The vice president asked the driver questions about the driver’s ability to complete training and to drive given his deafness. The driver answered all the questions and explained that he checks his mirrors frequently, uses his other senses to compensate, and can write and gesture to communicate with trainers.
Notably, according to the EEOC, the vice president did not propose any means of accommodation and did not further investigate any means of accommodation. At the conclusion of the interview, the vice president told him that because he could not hear, he would not be hired. The driver stated that he thought this amounted to unlawful discrimination. Following the interview, the driver attempted to contact the carrier several times but did not receive any response. The driver was subsequently hired by a different carrier and worked successfully as a commercial truck driver.
Applicable Law
The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment, unless when the proposed accommodation would cause the employer an undue hardship. Under the ADA, a qualified individual is one who can perform the essential functions of the job with or without reasonable accommodation. As noted by the EEOC, “‘[u]ndue hardship’ means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.”
Employers are not required to hire applicants who would pose a “direct threat.” The EEOC defines a direct threat as a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
Takeaway
Given that this case is still in its infancy, a little guesswork is required to understand the underlying facts that gave rise to the lawsuit. A reasonable hypothesis is that the vice president of safety and compliance raised safety concerns with hiring a deaf driver. Of course, carriers must be ever-vigilant in selecting their drivers. Carriers are all too familiar with the reality that the carrier can be held liable for injuries and damages caused by their drivers, especially where the carrier had reason to know the driver could be unsafe. Possibly, the vice president may have even suggested that the driver/applicant in this case posed a direct threat under the ADA.
The carrier here was put into a difficult position. On one hand, the carrier had to consider the requirements of the ADA. On the other, the carrier had to consider its moral and legal safety obligations. This case may ultimately turn on an independent third-party assessment of this particular driver’s ability to drive a commercial motor vehicle safely. However, the hearing exemption from the FMCSA, successful completion of commercial truck driving school, commercial driver’s license, and track record of success in the employ of other subsequent carriers could likely be seen as strong evidence in the driver’s favor on this point.
In any event, the claimed failure to at least engage in the interactive reasonable accommodation process (i.e. inquire as to possible accommodations that could alleviate the carrier’s safety concerns), if substantiated, may prove problematic for the carrier. Moreover, if true, announcing the decision to not hire the driver because of his deafness at the conclusion of the interview itself may also prove to be problematic for the carrier. Such decisions should generally be made (1) after careful reflection and consideration of all the facts in the case, including the consideration of possible reasonable accommodations and the realities of the direct threat considerations. Announcing the decision at the conclusion of the interview may give the appearance of hastiness, or a decision made on preconceived notions or stereotypes.
Again, while the forgoing analysis is based on the EEOC’s claimed factual basis, and the carrier has yet to mount its defenses, even at this juncture the case is instructive. When the ADA is implicated, care must be taken in ensuring that appropriate actions and steps are taken by a carrier in addressing the issues presented by the particular situation. Moreover, the carrier’s ultimate decision should be well thought out, should be based on relevant, fact-based conclusions, and should be well documented. For the inexperienced or uninitiated in dealing with such ADA issues, seeking help and guidance on the front end can be very beneficial.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.