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Maximizing individual rights and opportunities is an American tradition. Recent lawsuits involving the Americans with Disabilities Act, however, reveal how that laudable goal may conflict with public safety and other public goods.

Disabilities Act Dilemma: Job Rights vs. Job Safety

Bias Suits Pose Public Risk, Employers Say

By Kirstin Downey Grimsley
The Washington Post, April 8, 1997

Disabled workers' rights and public safety concerns in the transportation industry may be on a collision course.

A recent spate of lawsuits brought under the 1990 Americans with Disabilities Act is raising concerns in industry circles that some efforts to improve job opportunities for the disabled could make the workplace a riskier place for their co-workers and the public. But advocates for people with disabilities argue that blanket prohibitions on hiring are unfair, and have been appropriately brought to the courts in cases such as these:

Late last month, the Equal Employment Opportunity Commission filed a class action ADA lawsuit against United Parcel Service, seeking to force the company to hire truck drivers with vision in only one eye, although the company believes that they would prove a safety hazard.

Earlier last month, three deaf employees of Federal Express Corp. sued their employer under the ADA because they are not being allowed free airplane rides on FedEx's cargo planes, a perk granted to employees who can hear. A FedEx spokeswoman declined to comment because the company does not discuss pending litigation. Federal Aviation Administration rules prohibit deaf people from occupying seats in the cockpits of passenger planes because they could not hear oral commands in an emergency. But the FAA does not address the issue on cargo planes, and allows the carriers to set their own policies.

In January, a former truck driver for Ryder Systems Inc. won a $5.5 million jury verdict after claiming, under the ADA, that Ryder unfairly removed him from his position after he suffered an epileptic seizure, saying his health condition could be a safety hazard. During the time he was blocked from his job at Ryder, the driver was hired by another firm, had a seizure behind the wheel and crashed into a tree. Ryder is appealing the verdict.

The Ryder driver is not the only recent example of a worker's disability being cited in an accident. The National Transportation Safety Board recently said that a New Jersey commuter train ran through a red signal and hit another train in February 1996 because an engineer had concealed from his employer the fact that he was colorblind and had only partial vision in his left eye. The engineer and two others died in the wreck; 158 people were injured.

Many business representatives and executives applaud the intent of the ADA, and say it is helping them bring more disabled workers into the workplace. However, they cite these recent cases as examples of overly liberal interpretations of the ADA, which they say may put other people at risk.

"Don't get me wrong -- most employers want to do the right thing to accommodate disabled workers and help them work," said Stephen Bokat, executive vice president of the National Chamber of Commerce Litigation Center. "But we could be endangering not just the public, but co-workers."

Some government safety officials also expressed some concerns about these new legal cases. "Our feeling is a person needs to be in full command of all his faculties if he is operating a commercial transportation vehicle," said Barry Sweedler, director of the office of safety recommendations for the National Transportation Safety Board.

Advocates for the disabled argue that hiring decisions should be made on the basis of individual abilities, not stereotypes. And even if there is an increased risk, society must accept it as the price of creating a fairer workplace for the disabled.

"The key thing is weighing the overall social costs against the overall social benefits," said Chai Feldblum, an associate professor of law at Georgetown University who assisted in drafting the ADA. "There is a significant social cost when tens of thousands of people are dismissed from jobs because of assumptions about their abilities."

Feldblum said some workers, after an individual evaluation, may turn out to be unqualified to handle some jobs. The law "doesn't require employers to continue to employ someone who is a risk to others," she said.

Feldblum said the courts will decide the legitimacy of these claims. In any case, she said, no one can guarantee anyone else's safety. "We can't live in a risk-free world, though we would like to," she said.

The Americans with Disabilities Act, which sailed to passage in 1990 with overwhelming support from both Republicans and Democrats, including the backing of the Bush administration, is designed to address the many injustices suffered by the nation's 49 million disabled people, who have one of the nation's highest poverty rates. It deals with a wide range of issues, including employment bias and access to buildings and public facilities.

The law makes it illegal to discriminate against the disabled and requires employers to provide "reasonable accommodations" to assist the disabled in performing their tasks, as long as it does not cause employers "undue hardship."

Companies are not allowed to bar workers from jobs unless they can prove an individual worker poses a "direct threat to the health or safety of other individuals."

Overall, the law appears to have helped many disabled Americans. The Census Bureau's Survey of Income Program and Participation, released last year, found 800,000 severely disabled workers got jobs after the legislation was passed, with the employment rate among that population jumping from 23.2 percent in 1991 to 26.1 percent in 1994. Meanwhile, a private survey by the United Cerebral Palsy Foundation found that of a sample of 1,330 disabled people and their families, 96 percent said the law had improved their lives.

Employers, however, say the ADA has made employment decisions far from clear-cut. It has been left to employers to decide whether recovering alcoholics are disabled, or whether mentally ill people may increase the possibility of workplace conflicts, and to weigh one set of risks against another. Some employers fear being sued for discrimination if they don't hire the disabled, and being found liable for damages if a disabled employee causes harm to others.

"This statute has put employers between a rock and a hard place more than any other statute yet written," Bokat said.

Mary Reed, a lobbyist for the National Federation of Independent Business, said at the time the ADA was passed, many business leaders were aware of some potential risks but were silent out of fear.

"Some corporations or large business groups were afraid to be out front against this law for fear they would be sued or picketed by disabled groups," Reed said.

In the UPS case, lawyers for the EEOC said the company's stance against hiring drivers with vision in only one eye is a clear violation of the ADA and constitutes unfair discrimination against the visually handicapped. William R. Tamayo, EEOC regional attorney handling the case, said that UPS's policy was based on "myths, stereotypes and fears" about the handicapped.

Tamayo said federal transportation studies have shown that drivers with vision in only one eye pose no additional safety risk and, in fact, may be more accident-free than drivers with normal vision who may be more careless behind the wheel. "We want the UPS to stop its basic policy of blanketly denying people with monocular vision these driving jobs," Tamayo said.

UPS spokeswoman Gina Ellrich, who called the EEOC lawsuit "without merit," said the company employs one-eyed people in jobs that she said do not present a safety concern, but not in delivery trucks.

"UPS believes this is a safety issue, not a disability issue," she said. "Our drivers are among the safest in the nation."

The lead plaintiff in the UPS case is Yvonne Harbison, who was employed as a package car driver at UPS's Oakland, Calif., facility for 14 years before she lost an eye to cancer. After Harbison recovered, she gained back her California commercial driver's license and passed the UPS driving test, but the company would not restore her to her job, the EEOC said. Instead, UPS gave her a new job driving smaller trucks.

Tamayo said the legal question of who may drive trucks already has been settled in California by the state Department of Motor Vehicles, which permits people with one eye to obtain commercial drivers' licenses, and by the Transportation Department, which permits them to drive trucks that weigh as much as 10,000 pounds. He said most UPS trucks fall below that weight.

UPS's Ellrich said the company applies the more rigorous DOT standard to all its trucks, not just the smaller ones. For UPS truck drivers, it is a major financial issue because they earn one-third to one-half more than most other UPS employees.

The chamber of commerce's Bokat said UPS is facing trouble either way the case goes, because it will be liable in the future if one of its one-eyed drivers has an accident.

"What's the first thing your friendly local ambulance chaser will do?" Bokat asked rhetorically. "He will sue you for hiring a person with bad depth perception."

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