Court revives Union Pacific conductor's ADA claim, finding 'extensive search' for accommodation never occurred - HR Dive

Dive Brief:

• A federal appeals court has revived a Union Pacific train conductor's Americans with Disabilties Act (ADA) lawsuit, saying that the employer's purported "extensive search" for accommodations never occurred (Mlsna v. Union Pacific Railroad Co., No. 19-2780 (7th Cir. Sept. 14, 2020)).
• Union Pacific maintained rules related to hearing safety that were stricter than federal regulations. Namely, it required certain employees to wear ear protection that met a certain standard. The plaintiff, however, had a hearing impairment and when wearing the usual protection, could not pass a hearing test. He suggested alternatives and the employer said it researched other options, to no avail. He was eventually fired and he sued, alleging Union Pacific failed to accommodate his impairment.
• A federal district court granted summary judgment for the employer, finding that the plaintiff had not shown that a reasonable jury could conclude that he could fulfill the essential functions of the train conductor job with a reasonable accommodation. On appeal, however, the 7th U.S. Circuit Court of Appeals reversed, reaching a few conclusions. First, questions remain about whether the employer's higher standard was an essential function. Second, the plaintiff showed that a reasonable jury could find that he could have been accommodated with other devices. "Potential reasonable accommodations were not considered which could have permitted [the employee] to wear hearing protection while also meeting the requirements of the hearing acuity regulation," the appeals court said, adding that "once an employee commences the interactive process to find a reasonable accommodation, employers have an 'affirmative obligation to seek the employee out and work with her to craft a reasonable accommodation.'" The court also said that discovery revealed that Union Pacific's "extensive search" for devices never occurred.

Dive Insight:

The ADA prefers that employers engage in an "interactive process" of looking for a reasonable accommodation, experts have said.

Employers are generally encouraged to engage in such a process to identify possible accommodations once an employee has requested a change. An employer's failure to engage in the process can serve as evidence of disability discrimination. Similarly, if an employee refuses to engage or discuss alternatives, the employer may be in a position to show that it made a good-faith effort to accommodate.

Employers may have to make accommodations to allow employees to perform the essential functions of their jobs. What constitutes an "essential function," however, is often a topic of dispute. The Mlsna court noted that consideration often will be given to the employer’s judgment, especially written job descriptions.  Union Pacific maintained such a description and, had it been the only evidence available, the district court’s conclusion that wearing hearing protection is an essential function of a conductor would not be "second guessed." But, the court noted, the lower regulatory standard exposed a factual dispute.