- A jury verdict in favor of a deaf employee who was prohibited from operating a forklift after years of successful operation was upheld (Siewertsen v. Worthington Industries, Inc., Nos. 16-4259/17-4135 (6th Cir. August 20, 2019)).
- The employee operated a forklift for several years in his role as a shipper. When his employer passed a company-wide policy prohibiting deaf employees from operating forklifts, the employee was moved to a lower-level position with fewer advancement opportunities but did not have his pay reduced. A jury concluded that the employee was capable of performing the essential functions of a shipper position (which included forklift operation), that he suffered an adverse employment action, and that the employer failed to prove that the employee posed a direct threat to himself or others.
- The 6th U.S. Circuit Court of Appeals upheld the jury verdict. The employee had demonstrated that he could safely operate a forklift even without being able to hear, and his job transfer was an adverse action because it moved him to a less challenging role and limited his opportunity for promotions and raises. Additionally, the employee had operated the forklift for over 10 years without an accident and had effective safety and communication protocols; it was reasonable for the jury to have concluded he did not pose a direct threat, the court said.
As this case demonstrates, there is often more than one way to successfully perform a job's essential functions.
Here, although the employee couldn't hear whether his forklift horn was functional, he checked it every day by sounding it and feeling for the vibration. He also sounded the horn when approaching known blind spots and observed pedestrians' reactions to ensure they knew he was coming.
Randy Lewis, who has served as Walgreens' SVP of supply chain and logistics, recommends asking applicants how they would approach a particular task if they are not able to perform a job in a traditional way: "If it takes two hands to handle the case, ask the person," he said at a recent conference on employing people with disabilities. "Show them the job and ask how they'd do it. Chances are they've had a lifetime of figuring out how to do it."
It's important to remember that unfounded concerns about safety do not justify discrimination against applicants or employees. The "direct threat" standard requires an employer to show that an employee's condition poses "a significant risk of substantial harm" to the employee or others. This is a high bar, particularly if an employee has already been working in a position without incident. Additionally, a direct threat can often be reduced or eliminated by one or more reasonable accommodations.