In a recent decision, the U.S. District Court of Minnesota ruled that a reasonable jury could find that an employer failed to provide a reasonable accommodation to a job applicant with a severe hearing impairment, in violation of the Americans with Disabilities Act of 1990 as amended (pdf) (ADA).
The employer argued that the plaintiff is not protected by the ADA because his severe hearing impairment prevents him from using a workplace radio, which is a requirement of the positions to which he applied. The court disagreed ruling that a jury could find that with a reasonable accommodation, plaintiff could perform two outdoor mining positions to which he applied. The court in large part relied on the fact that the plaintiff had successfully performed similar duties with another employer for nine years without incident. Acknowledging the employer’s concern for the safety of its employees and the need for employees to be able to communicate with each other, the court nonetheless explained that other methods of communication were available and could potentially be used to get plaintiff’s attention i.e. written, hand signals, horns or more technological devices such as text-based devices.
This case underscores the need for employers to properly train their staff to address disability issues and requests for accommodations, even at the interview stage. It also illustrates that what is reasonable will change as technology advances and is made more readily available to employers. Therefore, employers must engage in a meaningful interactive process and think outside the box. What this means is you must ask questions, including, “What accommodation would allow you to do this job?” Then follow-up based on the response to that question to get a full picture of the employee’s disability as it relates to the job. This will place employers in a better position to evaluate the request and assess their ability to provide a reasonable accommodation. If in the end an employer cannot provide a reasonable accommodation then it will have contemporaneous records of the requested accommodation(s) and the steps taken to provide that accommodation, or prove that the requested accommodation would have caused an undue burden on the company.