Few employers win ADA cases by using a business-necessity defense. That’s probably because few employers take the time to really lay out why their business cannot accommodate a particular disability.
Now the 11th Circuit has decided a business-necessity case that can serve as a blueprint for employers that want to use it effectively.
Recent case: Wilbur Allmond, who uses a hearing aid, worked for a firm that provided security for the United States Marshals Service at federal courthouses. Shortly after the 1995 Oklahoma City federal building bombing, federal authorities started looking at how they could improve courthouse security.
One of the security reviews concerned the essential job functions expected of guards. A physician who visited five federal courthouses to observe officers doing their jobs conducted the review. The doctor identified several hearing-related tasks he deemed essential for security officers, including understanding speech during conversations taking place face-to-face and over the phone, as well as being able to locate where a sound is coming from. He then recommended that all officers meet minimum hearing standards without a hearing aid.
The rationale: Hearing aids can fall out, fail or otherwise malfunction during an emergency.
After review findings were incorporated into the position descriptions of federal building security guards, Allmond failed the minimum hearing test without his hearing aid. His employer fired him.
He sued, alleging disability discrimination. The 11th Circuit Court of Appeals upheld his discharge.
It explained that the employer had proven both elements of the business-necessity defense. First, it showed that the hearing requirement was job-related. Second, it showed that the ban was consistent with business necessity by demonstrating why a security officer must be able to hear well during an emergency without the help of the hearing aid. (Allmond v. Akal Security, et al., No. 07-15561, 11th Cir., 2009)
Advice: Want to use the business-necessity defense? First, look at the job and determine the minimum physical requirements. Then clearly justify why no reasonable accommodation (such as wearing a hearing aid) will let the employee safely perform the job. Using an outside expert to analyze the job and its requirements adds credibility to your claims, too.
Note: The decision in this case appears to run counter to new ADA regulations that prohibit considering use of assistive devices such as hearing aids when making accommodation decisions. However, the public-safety issues involved took precedence over the ADA regulations. By introducing the U.S. Marshals Service’s research on legitimate job performance standards, Allmond’s employer made its case for terminating him.
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