Lessons Learned: Discrimination against a Disabled Firefighter

By John K. Murphy
FACT PATTERN - A St. Paul firefighter's federal legal claims of discrimination because of his limited eyesight won a $528,432 payout, according to a settlement reached by attorneys for the city and plaintiff. The firefighter was diagnosed with macular degeneration, later specifically identified as Stargardt's disease. The firefighter was unable to read small print without magnification has driver's license restrictions and experiences distortion at the center of his vision, according to his federal lawsuit filed in August 2009. The firefighter’s lawsuit said that despite his vision problems, he successfully performed his duties as a firefighter and EMT. This changed in 2004, when the firefighter had an eye exam during a routine medical screening. His vision was 20/200 in one eye and 20/100 in the other. The Assistant Chief immediately told the firefighter he was fired, but rescinded the order after the firefighter asked for a Veteran's Preference Hearing and his rights under the Americans with Disabilities Act. A month later, the firefighter was reassigned to "light duty" that caused a "substantial" reduction in pay, overtime and retirement benefits. The new job also was a "visually strenuous" audio-visual position in the training and development center of the department. After fighting the reassignments, the city terminated his employment for the fourth time in 2009. Two months after the termination, the state Department of Human Rights determined the city had engaged in "unlawful disability discrimination and retaliation". In July 2009, the city's Civil Service Commission also determined the city wasn't justified in terminating the firefighter, and he filed the lawsuit.

THE LAW – Under the current 2009 version of the American with Disabilities Act (42 U.S.C. 12102(2)(A)(B)(C)) for issues arising after January 2009, disabilities are defined as a physical or mental impairment that substantially limits a major life activity, or a "record" of such a condition. The ADA also covers an individual who has been "regarded as" having a disability, which means that s/he was subjected to an allegedly discriminatory action because of an impairment (unless the impairment was minor and transitory). A major life activity can include: walking, speaking, breathing, and hearing, seeing, thinking, sitting and standing among many other activities. As the law is generally silent to what defines a major life activity, the courts in their many discrimination cases are developing these lists.

The question that every fire department employer should ask when confronting a situation where an employee has an impairment that substantially limits a life activity is: does the individual with this disability have the background required for the job and can the employee perform the essential functions of the job, either, without any accommodation, or with a reasonable accommodation?  The Employer should further inquire if the qualification standard screens out the individual because of their disability; is it "job-related and consistent with business necessity? In the fire service we should also determine whether continued performance under a reasonable accommodation standard, does the individual poses a direct threat to themselves or others. A direct threat is when an individual with a disability poses a significant risk of substantial harm to him/herself or others, and there is not a reasonable accommodation that would lower the risk of harm below that level.

The Equal Employment Opportunity Commission (EEOC) has provided examples of conditions that are not impairments. For example, physical characteristics (such as left-handedness), common personality traits (such as irresponsibility, poor judgment, irritability and chronic lateness), cultural, environmental, or economic disadvantages, homosexuality, bisexuality, pregnancy, and normal deviations in height, weight or strength are not impairments. Courts however have found that a broad variety of conditions are impairments, for example:  bad backs, bad knees, and migraine headaches are impairments. In most cases, an individual must request an accommodation if s/he wants one. The EEOC has stated that, in general, "it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." Therefore, most courts have held that an employer could not be liable for failing to provide an accommodation if the employee never asked for anything. Employers should be aware that some courts have said that if the employer knows about the disability and has reason to know of the need for accommodation, it may have an obligation to provide the accommodation -- even without an express request.

THE LESSON – The American with Disabilities Act is complex and bewildering and many attorneys not familiar with the nuances get lost in the interpretation of the tenants of the law. Here, however, the City and the fire department staff should have realized that the firefighter had a vision issue and should have taken EVERY PRECAUTION to ensure that the employee’s rights were protected under the ADA and a reasonable accommodate be made in this case. It appeared that the shuffling of the firefighter to different assignments created this legal nightmare. Summary termination of an employee would violate most if not all of the bargaining rights of the employee and it was the wrong first move on the part of the Assistant Chief and the City. What should have happened is a careful reading of the ADA and its most recent update is to ensure that every step in reasonably accommodating the employee is made before the decision to terminate any employee. As this is a complex issue, there is not enough space to review every step of the process in this space but suffice it to say the lesson learned here is not to toss out an employee with a disability without a careful analysis of the disability and the potential for a reasonable accommodation.

Excerpts from: RESOLVING ADA WORKPLACE QUESTIONS. How Courts and Agencies are Dealing with Employment Issues. Thirty-First Edition by David K. Fram, ESQ. Director ADA & EEO Services, National Employment Law Institute

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