A recent decision from an Alabama federal judge provides guidance to employers who are attempting to determine if an employee’s disability is a “direct threat” under the Americans with Disabilities Act. See Lewis v. United States Steel Corp., No. 2:14-cv-01965-AKK (N.D. Ala. Dec. 20, 2016). Alonzo Lewis was an “oiler” at U.S. Steel’s Fairfield, Alabama plant. U.S. Steel used audiovisual warning systems to alert employees that cranes, forklifts and/or trailcars were in motion in the plant.
Lewis is hearing impaired and admitted that sometimes he could not hear alarms in the plant. After a supervisor noticed that Lewis did not react to an alarm, U.S. Steel required him to undergo a hearing test. When Lewis failed the test, U.S. Steel refused to allow him to enter the facility and began the process of attempting to find a reasonable accommodation. Unfortunately, U.S. Steel could not identify any jobs in the facility which did not involve exposure to the mobile equipment. As a result, U.S. Steel terminated Lewis’s employment.
Lewis sued under the Americans with Disabilities Act. While his hearing disability was uncontested, U.S. Steel claimed that he was a “direct threat” to his own health and safety or the safety of others. Lewis claimed that he was not a direct threat, because he worked in the U.S. Steel facility for eight years without incident. He relied upon a decision from United States District Court Judge Madeline Haikala to support that argument. I wrote about Judge Haikala’s opinion here: https://employingalabama.com/2016/08/29/trust-doctor-violate-ada/
United State District Court Judge Abdul Kallon provided employers with an important distinction from Judge Haikala’s analysis of the direct threat defense. In Judge Haikala’s case, there was no “individualized or objective proof” that the employee posed a direct threat to himself or others. In the Lewis case, however, Judge Kallon found that the failed hearing test was “objective, individualized evidence” that could be relied upon by U.S. Steel to make an employment decision. Because Lewis was a direct threat, Judge Kallon found that his ADA case should be dismissed.
Judge Kallon also provided an alternative basis for dismissal. He found that U.S. Steel possessed a nondiscriminatory reason for termination: “safety concerns due to his inability to hear warning signals.” Lewis failed to demonstrate that U.S. Steel’s safety concerns were not legitimate concerns, so Judge Kallon found another reason for dismissal.
Judge Kallon’s reliance on “individualized, objective evidence” provides effective guidance for employers when considering whether an employee poses a direct threat to himself or others. If an employer possesses individualized, objective evidence that the employee poses a danger, then the employer is more likely to win an ADA discrimination case.