Safety vs. Discrimination: Who Wins?

(From the July 2000 issue of Demolition, published by the NADC)

By Mark A. Lies, II. Esq.

ANTI-DISCRIMINATION LAWS

As 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:

While 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.

OSHA LIABILITY TO MAINTAIN SAFE WORKPLACE

In 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.

When 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.

EMPLOYER FEAR OF DISCRIMINATION LITIGATION

Frequently, 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.

FEAR MAY LEAD TO TRAGEDY

A 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.

The 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.

The 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."

This 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.

The 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 liability.

EMPLOYER CAN ASSERT SAFETY AGAINST DISCRIMINATION

Under 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:

• African American male loses claims of race discrimination because of requirement to be clean shaven to wear respirator ("PPE"),

• Indian Asian employee cannot refuse to wear hard hat ("PPE") because of his religious beliefs which do not allow him to cut his hair.

Similarly, under the ADA, employees who have claimed disabilities have lost cases when a safety duty is required by the job:

• anesthesiologist who falls asleep during surgery because of narcolepsy is unqualified.

• cook with epilepsy whose uncontrolled seizures may cause him to collapse into stove and fat frier need not be accommodated.

• forklift drivers and airline pilots can be required to have certain levels of vision and hearing lo be able to perform a job safely.

• firefighter who cannot meet physical fitness requirements to wear respirator and perform a rescue is not qualified.

• truck drivers who cannot meet DOT requirements for blood pressure and vision are not qualified.

EACH INDUSTRY HAS UNIQUE HAZARDS

Employers 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 action.

Mark 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