By Jeffrey Rhodes December 2, 2020
Posted December 8, 2020
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A railroad company may have violated the Americans with Disabilities Act (ADA) when it decertified one of its conductors who it determined could not satisfy government noise-testing and protection requirements because of his hearing loss, the 7th U.S. Circuit Court of Appeals held.
The plaintiff had experienced hearing loss because, at an early age, he was exposed to loud farming equipment. He began working as a train conductor in the late 1990s, and in 2006 he was hired by Union Pacific Railroad Co. At that time, he had worn hearing aids for more than 10 years. Union Pacific was aware of his hearing impairment when he was hired.
In 2012, the Federal Railroad Administration (FRA) implemented regulations to ensure that train conductors possessed hearing acuity, and to confirm that railroads appropriately protected and conserved their employees' hearing. A grandfather clause granted 36 months, after which Union Pacific required all conductors to comply with the hearing-acuity regulation.
In February 2015, Union Pacific had the plaintiff's hearing tested a number of different ways: with hearing aids and without, using an amplified hearing protection device called the Pro Ears-Gold with the sound turned off, and using that device with the sound turned on. Without his hearing aids and without hearing protection, the plaintiff did not pass the hearing-acuity test. Rather, he passed only when he relied on his hearing aids with no additional hearing protection. Later, the plaintiff was retested with the same results: He passed, but only while wearing hearing aids without hearing protection.
To address this problem, the plaintiff proposed he use a custom-made hearing protection device called the E.A.R. Primo. But Union Pacific rejected his proposal, because that device did not have a factory-issued or laboratory-tested noise reduction rating, as required by the regulations. Union Pacific never identified an alternative to the device it had suggested, the Pro Ears-Gold. Union Pacific declined to recertify the plaintiff as a conductor, and his employment was terminated.
The plaintiff sued Union Pacific, claiming the railroad terminated him because of his hearing impairment and so violated the ADA. Union Pacific moved for summary judgment, claiming that it had no choice but to terminate the plaintiff under the FRA regulations. The district court agreed and dismissed the plaintiff's claims at summary judgment.
[SHRM members-only resource: What You Need to Know About … the Americans with Disabilities Act]
On appeal, the 7th Circuit considered whether the conductor position required compliance with the FRA regulations as an essential function of the position. In this analysis, the court determined that the regulations would apply only if the position experienced a weighted average of noise at a level of 90 decibels or higher.
Union Pacific's noise level measurements concerning its conductor position dated back to 1980. That data showed that about 36 percent of the conductors were exposed to an eight-hour time-weighted average of 85 decibels or greater, and about 13 percent were exposed to an eight-hour time-weighted average of 90 or more decibels. The plaintiff argued that the most recent testing for this data occurred in 2001, and that in 2007 the FRA began mandating the use of quieter locomotives. After 2007, the plaintiff argued, conductors were no longer subject to an eight-hour time weighted average of 90 decibels or higher.
The court agreed with the plaintiff that because of the age of the data, a reasonable jury could find that the regulations did not apply to him during his employment as a conductor. The court also noted that Union Pacific applied the requirements to conductors exposed to a weighted average of 85 decibels or higher, and thus included more conductors than required by the regulations.
The court further found that, in the reasonable accommodation process, Union Pacific could not show that it engaged in an extensive search for adaptive devices for the plaintiff. Thus, the court ruled that genuine issues of material fact existed concerning whether Union Pacific accommodated the plaintiff after he proposed the E.A.R. Primo, which Union Pacific rejected.
The 7th Circuit thus reversed the district court grant of summary judgment.
Mlsna v. Union Pacific Railroad Co., 7th Cir., No. 19-2780 (Sept. 14, 2020).
Professional Pointer: Federal safety regulations can put employers between a rock and a hard place concerning ADA compliance. Employers should closely follow the regulations and keep their data concerning employee safety up-to-date to avoid any conflicts between the regulations and the ADA.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.