HR Basics: Accommodating and Hiring a Deaf Person For a Safety-Sensitive Position

By Eric B. Meyer

One of my all-time favorite ADA cases — God, am I a dork — is Keith v. County of Oakland, which I previously blogged about.

It involves a deaf lifeguard who applies for a position at a public pool and what, accommodations, if any are reasonable to allow him to perform the essential functions of the job. Why I like the case — in addition to singing the Baywatch theme when I speak about it at SHRM events — is it teaches employers never to judge a book by its cover.

Yes, even a deaf lifeguard may be qualified to perform the essential functions of the job.

Yesterday, I read about another case involving a deaf applicant for a safety-sensitive position.

Deaf woman sued for a job under ADA

In Osborne v. Baxter Healthcare Corp., a deaf woman applied for a job as a plasma center technician. After two interviews, she was conditionally offer the position pending a background check and some basic paperwork. However, when HR learned that the applicant was deaf, it rescinded her offer.

So, the woman sued for discrimination under the Americans with Disabilities Act.

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Both side agreed that deafness is an ADA disability, and the reason the job offer was rescinded was because of her deafness. The employer argued that the offer was rescinded because the plaintiff was not qualified for the job; that is, she could not perform the essential functions of the position with or without a reasonable accommodation.

The opinion is rather long and discusses several legal issues. Since it’s getting late, and I know you don’t want to read a thousand words on ADA accommodations, here’s the short version:

  • A direct threat means something more than an infinitesimal risk of harm. The employer argued that hiring the plaintiff would create a direct threat to the safety of its patients. It’s evidence was a .0004 percent risk of an adverse donor reaction. The court gave that argument the back of the hand, “The infinitesimal risk of these hypotheticals occurring simultaneously — which is much less than 0.0004 percent when the risk of adverse reaction is multiplied by the probability of the other occurrences—does not come anywhere close to constituting a ‘direct threat.’ ”
  • Undue hardship means more than mere lip service. A plaintiff alleging failure to accommodate must show that she proposed an accommodation that was reasonable on its face. Here, one of the accommodations requested was a vibrating alarm. Seems reasonable to me. But, maybe it could create an undue hardship (e.g., too expensive for the business). Then again, according to Wikipedia, the employer, a Fortune 200 company (Baxter International) had 2013 sales of $15.3 billion. And the only evidence in the record on the feasibility of equipment modifications was an employee, who indicated that the company was unable to modify the machine and any modifications would have to be requested through its vendor.
  • Trust me when I tell you that arguing that you had to contact a vendor does not show undue hardship.
    Engage in an interactive process. Now, I’ll admit that I didn’t scrutinize every word in the opinion, but I saw nothing in there about the employer engaging in an interactive dialogue with the plaintiff. Where I practice, when the employee does enough to place the employer on notice that she needs an accommodation, the employer must engage in a good-faith interactive discussion about possible accommodations. Otherwise, the employer is up the creek. While not addressed by the Court, I saw no evidence of that here.:

Employer takeaways

Above all, remember the lessons from this case and the lifeguard case:

  1. Don’t judge a book by its cover.
  2. Explore accommodations with an open mind;
  3. Seek professional assistance when necessary, and;
  4. Only after you have exhausted possible, reasonable options should you decline to provide an accommodation.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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