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‘Business necessity’ may become new ADA focus

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in Discrimination and Harassment,Employment Law,Human Resources

Beginning this month, the new amendments to the ADA take effect.

Among those rules is one that says employees are disabled even if they can mitigate the effects of that disability with medication or other aids. That is, employees who manage to live fairly normal lives despite a disability (such as diabetes or poor hearing) are still considered disabled and protected by the ADA.

That means employers that worry whether those disabled employees are really fit to do their jobs will have to work harder to show their concerns are genuine and not just a manifestation of disability discrimination.

One way they can do that is by using the business necessity defense, showing that an employee’s disability—even if mitigated—still interferes with satisfactorily doing the job. But employers will need to show convincing medical evidence that that’s the case.

Recent case: Richard Fraterrigo, who was 72 years old, worked as a security guard for the Thurgood Marshall U.S. Courthouse in Manhattan.

The federal judiciary set firm hearing standards for all guards, based on a medical study it had commissioned to determine the physical attributes guards need in order to provide adequate protection. The study said guards needed to pass a hearing test without using hearing aids.

Fraterrigo failed and demanded that he be allowed to take the test with a hearing aid as a reasonable accommodation. When his employer refused, he sued.

But the judiciary center said the study clearly showed that a hearing aid would not help guards distinguish between background noise and other sounds. Therefore guards wearing hearing aids could still not do the job.

The court agreed and dismissed the case. It said the employer had proven that its restriction was business-related and based on necessity. (Fraterrigo v. Akal Security, No. 06-Civ-9861, SD NY, 2008)

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