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Wisconsin Court Rejects "Direct Threat" but Rules Sight Impaired Worker Is Not "Qualified Individual"

  • October 29, 2003

A Wisconsin cheese producer narrowly succeeded in defending the termination of a blind factory worker after the court rejected the employer's defense that the individual posed a "direct threat" to the safety of himself and others in the workplace. Although the employer ultimately prevailed, the case offers important compliance lessons for employers managing disabled employees who are struggling to perform essential job functions.

Because of his impairment, the employee frequently bumped into carts; incorrectly stacked cheese and often dropped it; failed to turn or trim cheese rounds; bumped cheese carts into walls; and did his job too slowly to keep up with production demands. He also used a grinding machine in an unsafe manner and had many "near-misses" with other coworkers in the factory. Without discussing any options for reasonably accommodating the worker's sight impairment, the employer decided the employee was unable to do the job and terminated him.

Going into trial, the employee already had proven he was disabled (legal blindness), the employer knew he was disabled, and he was fired "because of" the disability. The court previously rejected the employer's defense that its blind employee was a "direct threat" to safety in the workplace. The only question left for trial was whether Hammel was a "qualified individual" for the position of cheese factory laborer. The court found that he was not because he could not perform the essential functions of the position, with or without reasonable accommodations. Specifically, he had failed to show that the reason he was unable to perform the job was his blindness, not because of a bad attitude and "unwillingness to accept direction and lack of motivation."

In reaching its decision, the court faulted the employer for failing to explore more fully whether reasonable accommodations could be made, but nevertheless concluded that none existed. The employee's own expert identified only two accommodations the employer could have made, along with a number of "adaptive steps" the employee could have taken. Although the employer had implemented both of the identified accommodations (relieving Hammel from certain hazardous duties, and permitting him to wear a billed hat to protect his head), the employee still could not perform the essential functions of the job. The employee had not incorporated the adaptive steps into his job performance, but the court noted they were not relevant to the discussion about reasonable accommodations because they were involved the employee's own change in behavior, rather than the employer's. Ultimately, the court ruled the employer had not unlawfully discriminated against the employee on account of his disability. [Hammel v. Eau Galle Cheese Factory, WD WI, 2003.]

While the outcome of the decision was employer friendly, this case presents a "perfect storm" of poor decisions that could have led to liability. The decisions the employer made provide clear examples of what not to do when dealing with a disabled employee experiencing problems doing his job. Instead, employers should focus on employee behavior, explore all reasonable accommodations, and look beyond an employee's attitude or anticipated reaction:

  • Focus on behaviors - not causes. The employer admitted to firing the individual "because of" his disability. It failed to produce credible evidence that the individual had a "bad attitude" and failed to follow direction, reasons that may have provided lawful motivation aside from the disability. The employer should have focused on the behaviors that constituted poor performance, rather than that the disability may have caused them;
  • Document all problem behaviors. The employer failed to produce evidence that the employee presented a "direct threat" to himself and other workers. While the employer suggested the employee had tripped, bumped into coworkers, dropped rounds, drove carts into walls, and used a cheese grater in an unsafe manner, these incidents were not adequately proven and were not linked to a "direct threat" analysis by, for example, an expert in factory safety;
  • Take the "interactive process" seriously. The employer failed to engage the employee in the interactive process of seeking a reasonable accommodation. Instead, it made the decision that he could not perform the essential functions of his job without discussing the problems he faced nor consulting reliable resources on sight impaired individuals;
  • Never assume accommodations will not work. The employer assumed the employee would not utilize accommodations due to a "bad attitude," and tried to justify its failure to engage in the interactive process with that explanation. But the employer failed to show any evidence linking his alleged poor attitude with any proposed accommodation, or why that accommodation would not have worked as a result.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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