Company Violated ADA by Reassigning Forklift Driver Who Is Deaf

 

By Jeffrey Rhodes October 30, 2019
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Company Violated ADA by Reassigning Forklift Driver Who Is Deaf

​A steel manufacturing company that employed a person who is deaf as a forklift driver for seven years violated the Americans with Disabilities Act (ADA) when it reassigned him to another position out of safety concerns, the 6th U.S. Circuit Court of Appeals ruled.

The plaintiff has worked for Worthington Industries Inc., a steel manufacturing company, at Worthington's Delta Plant since 1999. The Delta Plant is a steel-processing center where workers manipulate raw steel to customers' specifications and then ship it to them.

From 2001 through 2008, the plaintiff was officially assigned to work in packaging, but he frequently performed all jobs in the shipping department, including operating forklifts and overhead cranes. Worthington employees informally trained the plaintiff to operate a forklift in 2000, and Worthington formally certified the plaintiff to drive a forklift in 2004. Worthington recertified the plaintiff several times after that—most recently in 2010.

The shipping department was made up of fields of large metal coils waiting to be shipped, and a shipping bay where trucks and trains arrive to be loaded. In some areas of the coil fields, the coils were stacked on top of each other such that they created blind spots. The composition of the fields, and thus the blind spots, were ever-changing during the day.

The shipping department employees navigated the coil fields and the loading bays on foot, in forklifts and on bikes. The plaintiff admitted that the coil fields were dangerous. To avoid accidents between machines and pedestrians, the employees operating forklifts and overhead cranes would honk their horns and flash their lights when approaching blind spots in the coil fields and driving through the loading bay. The plaintiff stated that he was able to communicate with the truck drivers through hand gestures and written messages.

In early 2011, Worthington sought an expert opinion from the owner and president of Forklift Training Systems concerning the ability of a person who is deaf to operate a forklift in Worthington's plants. The expert replied that he did not believe a person who is deaf could safely operate a forklift in that environment. Worthington accepted the expert's opinion and enacted a policy disallowing employees who are deaf, including the plaintiff, from operating forklifts.

Worthington determined that, due to the plaintiff's limited communication skills, he was eligible for only four positions at the Delta Plant, all of which the plaintiff described as entry level with no room for advancement. The plaintiff was transferred to one of those positions, but his pay was not decreased.

The plaintiff filed suit in November 2011, alleging that Worthington illegally discriminated against him based on his disability, in violation of Ohio law and the ADA. Prior to trial, the court excluded the plaintiff's damages experts and denied the plaintiff's motion for a punitive-damages instruction.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The plaintiff testified that he never had an accident while driving the forklift and had always received high marks in his employee evaluations. The plaintiff admitted that he had been involved in a near miss in 2010 while walking through the coil field. Another Worthington employee testified that the plaintiff almost hit a pedestrian while driving a forklift. The plaintiff denied that the incident occurred.

The jury returned a verdict in favor of the plaintiff. The jury found that he was capable of performing the essential functions of the shipper position and had suffered an adverse employment action, and that Worthington failed to prove its direct-threat defense.

At the close of the trial, the district court granted Worthington's motion for a directed verdict on back pay, holding that the plaintiff was not entitled to back pay in addition to stipulated compensatory damages of $150,000. The court required Worthington to reinstate the plaintiff as a shipper, remove the restriction that he may not operate a forklift or similar equipment, and remove any limitations keeping him from applying for other positions within the manufacturing department. The court denied Worthington's motion for a new trial and renewed motion for judgment. Both the plaintiff and Worthington appealed.

On appeal, the 6th Circuit upheld the trial court's rulings below. It affirmed the district court's order that the plaintiff be returned to his position. However, it declined to rule that Worthington's blanket policy barring forklift drivers who are deaf violated the ADA and Ohio law.

Siewertsen v. Worthington Industries Inc., 6th Cir., Nos. 16-4259/17-4135 (Aug. 29, 2019).

Professional Pointer: Employers must consider past practice before imposing new safety rules that result in the reassignment of employees with disabilities to other positions. A judge and jury will often consider past performance as evidence that an affected employee was qualified for the position and could continue to perform it without endangering the health or safety of other employees.

[Visit SHRM's resource page on the Americans with Disabilities Act.]

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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