Three recent federal court decisions foreshadow the likely forthcoming changes to a string of cases upholding the ban of hearing aids during annual physical testing for the Court Security Officers (CSO) of the U.S. Marshals Service (USMS). As background, it should be understood that this ban was first implemented in 2002 by the USMS through an annual physical test for the CSO position, which includes a hearing test. Employees are allowed to wear hearing aids on the job, but must pass the hearing test unassisted, or else be subject to termination.
Although several plaintiffs have challenged this policy, the majority of the federal district and circuit courts that have addressed the issue granted summary judgment against the plaintiffs based on the determination that the plaintiffs could not demonstrate that they were disabled under the Rehabilitation Act (Rehab Act) and the Americans with Disabilities Act (ADA). See, e.g., Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir. 2007); Wilson v. U.S. Department of Justice, 475 F.3d 166 (3d Cir. 2007); Leitch, et al. v. MVM, Inc., et al., No. 03-4344 (E.D. Pa. 2007); Bush v. U.S. Department of Justice, No. 1:05 CV 108 (D. Vt. 2005); Foster v. U.S. Marshals Service, No. 5:05-CV-0091-J (N.D. Tex. 2005). In at least one case, even if the plaintiff could demonstrate that disability, the hearing test qualification standards were found to be consistent with a business necessity, thus serving as an affirmative defense to liability. See Fraterrigo v. Akal Security, No. 06 Civ. 9861 9 (SHS) (S.D.NY. Oct. 29, 2008). Previous cases, all decided on substantially similar facts, had set a pattern of plaintiffs having their cases disposed of by summary judgment on the preliminary issue of whether the plaintiff was disabled. Yet, in the following cases below, there is an interesting deviation from the many cases before them.
In Ruiz v. U.S. Department of Justice, No. CA-V-07-56-H (S.D. Tex. Dec. 11, 2008), the Southern District Court of Texas held that the USMS violated the Rehab Act when it disqualified an employee of Akal Security, the employing contractor, from his CSO position because the employee failed the hearing test. In Ruiz, the plaintiff survived summary judgment and was allowed to have a finding on the facts by a jury. The jury found that the USMS had regarded the plaintiff as disabled and that the decision to disqualify the plaintiff was not consistent with any business necessity.
In Allmond v. Akal Security, Inc., No. 07-15561 (11th Cir. Feb. 20, 2009), the Court of Appeals for the 11th Circuit upheld a grant of summary judgment finding that the defendant had not violated the ADA. Notably, however, the court completely passed on the issue of whether the plaintiff was disabled, and rather decided the matter by determining that the hearing qualification standard was job-related and consistent with a business necessity. Also, the plaintiff did not overcome the business necessity affirmative defense when he failed to offer a reasonable accommodation that would allow him to satisfy the standard.
In Kemp v. U.S. Department of Justice, et al., No. 03-1633 (W.D. La. Mar. 3, 2009), the Western District Court of Louisiana granted summary judgment for the defendant based on the plaintiff’s failure to demonstrate that he was disabled under the Rehab Act or the ADA. Interestingly, in a footnote the court acknowledged the existence of the ADA Amendments Act of 2008 (ADA AA), but found that it did not apply retroactively.
In Ruiz, Allmond, and Kemp, each court treated the issue of determining disability differently. Remarkably, Ruiz and Kemp, both appealable to the 5th Circuit, had opposite outcomes on this same issue. The three aforementioned cases are certainly upsetting the established case law and may be the beginning of a trend in the direction of finding the hearing qualification standard to be violative of the Rehab Act or the ADA. The case law will undoubtedly be greatly impacted by the recent passage of the ADA AA which broadens the statutory definition of disability that was often the stumbling block for plaintiffs. In the future, the focus of challenges to the hearing-aid ban will likely be on whether the hearing qualification standard is consistent with a business necessity.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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