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Safety vs. Discrimination: Who Wins?(From the July 2000 issue of Demolition, published by the NADC)
By Mark A. Lies, II. Esq.
most employers are learning on an ongoing basis, potential liability for
employment discrimination is a significant consideration in all aspects
of the employment relationship from hiring through discipline and
ultimately to termination. Under federal law, employees are protected
against discrimination based upon numerous bases, including:
the application of many of these federal laws are dependent upon the
size of the employer's workforce (e.g., the employer must have a certain
number of employees), most states have similar laws which have a lower
threshold number of employees. Thus, the employer must develop policies
which prohibit such discrimination in the workplace.
LIABILITY TO MAINTAIN SAFE WORKPLACE
addition to the employer's duty to maintain a workplace free of
discrimination, there is an equally compelling legal duty to maintain a
workplace free of recognized hazards to employee safety and health.
Since 1971, the Occupational Safety and Health Act (“Act"), has
mandated this employer duty.
these conflicting duties are weighed against each other, there should be
no reasonable doubt that an employers duty to protect its employees
against injury or death must outweigh the duty to continue to provide
employment. This obligation has been forcefully asserted by the
Occupational Safety and Health Administration ("OSHA"),
through the issuance of citations, frequently with substantial monetary
penalties. More recently, OSHA has begun to criminally prosecute
employers (both the company and management representatives) for failure
to enforce safety and health regulations.
FEAR OF DISCRIMINATION LITIGATION
instances are arising where employers are afraid to enforce safety and
health regulations and policies because of fear of employment
discrimination where the employee may be in a protected category because
of his/her race, sex, etc. An employer who allows such fears to drive
its safety and health program is taking a serious potential risk.
Moreover, such risk is most times not a real one because of case law
which supports the employer.
MAY LEAD TO TRAGEDY
recent case which the author handled clearly illustrates this conflict
and what can occur. An employer was responsible for maintaining below
ground dry sewer vaults where pumping equipment was located to create
pressure in a sewer system. A maintenance employee entered the manhole
and climbed down a 30 feet ladder into the vault to inspect the pumps.
Obviously, the vault was a confined space. As the employer climbed back
up the ladder and reached the manhole opening, he fell backwards into
the vault sustaining severe internal injuries.
employee died after several days. When the autopsy was performed it was
determined that the employee weighed 592 pounds. The accident
investigation revealed that the employer was well aware of this
employee's extreme physical condition and that he frequently was short
of breath, had difficulty walking and sweated profusely.
investigation further revealed that the employer was concerned about
taking any action to relieve the employee of his work because of the
fear that he might file an employment discrimination complaint claiming
that the employer considered the employee to be "disabled"
under the American with Disabilities Act ("ADA") because of
his obesity. Under the ADA, the Equal Employment Opportunity Commission
("EEOC") considers an employee who is more than twice his/her
normal body weight to be someone who may be "disabled."
tragedy need not have occurred because of an employer under the ADA has
a right to determine the "essential functions" of a job and if
the employee cannot perform such essential functions, the employee will
not be "qualified" to perform the job and need not be hired or
maintained in the position.
employer was entitled to obtain a medical evaluation of the employee’s
fitness to perform this job which presumably would have revealed that
the employee could not safely perform the physical duties of climbing
into a confined space and up a 30 feet ladder. To allow this employee to
continue to work would also have created a "direct threat" to
the employee's health which is another recognized defense to ADA
CAN ASSERT SAFETY AGAINST DISCRIMINATION
the Civil Rights Act of 1964. employers have defeated discrimination
claims when the employer can establish a basis for its decision in
safety, for example:
under the ADA, employees who have claimed disabilities have lost cases
when a safety duty is required by the job:
INDUSTRY HAS UNIQUE HAZARDS
in every industry should not hesitate to establish industry appropriate
bona fide and rigorous physical fitness requirements for the unique
hazard, encountered by employees (e.g., confined space. falls, rescue,
etc.). Once these requirements arc established (with the assistance of a
competent healthcare professional) they should be applied at the time of
initial employment and throughout the duration of the working
relationship. As long as these standards are uniformly applied, the
employer will be fulfilling its safety and health duties and
establishing a legitimate, non-discriminatory basis for its employment
A. Lies, II, is a partner with the law firm of Seyfarth, Shaw, 55 E.
Monroe Street, (42nd Floor), Chicago. IL 60603, (312)346-8000. He
specializes in occupational safety and health and employment law. He can
be reached at: www.liesmaoseyfarth.com