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Federal Contractors:Trump Will Enforce Obama LGBT Executive Order

Link Robert C. Lockwood
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Trump Obama Executive Order LGBT Discrimination Federal Contractors
President Trump will leave intact an Obama-era executive order prohibiting LGBT discrimination by federal contractors.

Yesterday, the White House issued a statement that President Trump will continue to enforce an Obama-era executive order prohibiting discrimination by federal contractors against LGBT employees.  The statement can be found here: https://www.whitehouse.gov/the-press-office/2017/01/31/president-donald-j-trump-will-continue-enforce-executive-order

A good discussion of the statement can be found at the web site for The Hill: http://thehill.com/homenews/administration/317026-white-house-trump-will-continue-to-enforce-lgbtq-workplace

Last year, LGBT issues were frequently in the headlines, and I wrote about some of those issues here (Emerging LGBT Issues) and here (EEOC – Transgender Bathrooms).  In particular, President Obama’s Executive Order 13672 prohibits transgender discrimination by federal contractors.  The United States Department of Labor has prepared a Fact Sheet interpreting that order, which provides:

Under the Final Rule, contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.

That fact sheet can be found here:  DOL Fact Sheet on LGBT Discrimination

The White House statement is just that — a statement.  It provides some guidance to federal contractors who employ members of the LGBT community.  Nevertheless, as The Hill notes, the statement merely promises to keep the executive order “intact.”  There is still some speculation that the order might be edited or revised to increase religious exemptions.

Judge Kallon Provides Guidance For Employers Faced With a “Direct Threat” Under the ADA

Link Robert C. Lockwood
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ADA direct threat hearing
Judge Abdul Kallon recently found that an employee with a hearing impairment posed a direct threat to himself or others under the ADA.

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.