In EEOC v. Drivers Management LLC and Werner Enterprises, the Eighth Circuit Court of Appeals considered whether Werner Enterprises (“Werner”) had proven affirmative defenses of undue hardship and direct threat for failure to hire and accommodate CDL holder, Victor Robinson (“Robinson”), an individual with deafness.
Robinson applied and was considered for a driver position with Werner. Because Robinson had less than six months of over-the-road experience, he was required to complete Werner’s new driver training program which required four to six weeks of driving with a trainer who would provide real-time instruction, including verbal communication. Robinson notified Werner of his disability and provided the accommodations he had received during his CDL licensing program. After Robinson met with Werner’s Vice President of Safety and Compliance, Jamie Hamm (Hamm), Werner declined to hire Robinson because of his deafness.
The EEOC brought an action on Robinson’s behalf alleging Werner violated the ADA when it failed to hire Robinson because he was deaf and required an accommodation. In response, Werner asserted, in part, affirmative defenses that (1) Robinson’s deafness operated as a direct threat to safety of Robinson and others on the road; and (2) an accommodation which would allow Robinson to operate a commercial vehicle without the ability to hear verbal cues, particularly during his new driver training, posed an undue hardship. In a somewhat procedurally complex case, the District Court, in part, granted summary judgment in favor of the EEOC with respect to Werner’s affirmative defenses of direct threat and undue hardship.
On appeal, the Eighth Circuit found that to demonstrate an undue hardship, an accommodation must require “significant difficulty or expense” in based on several factors, including:
- Cost;
- Overall financial resources or operational impact on the facilities;
- Overall financial impact on the covered entity; and
- Overall impact on the type of operations of the covered entity.
Further, it stated that if an accommodation is reasonable on its face, it is up to the employer to show the particular circumstances that establish an undue burden.
In its decision, the court held that Werner “produced virtually no evidence” that accommodating Robinson with non-verbal cues would “fundamentally alter” business operations or pose a financial burden. Instead, the Court found Werner’s claim that the EEOC did not present a potential accommodation “Werner deemed safe” did not establish a genuine dispute regarding a “significant difficulty or expense.” Further, Werner failed to describe how non-verbal cues during training impacted its ability to conduct trucking operations in interstate commerce.
The Court defined direct threat as “a significant threat to the health or safety of others that cannot be eliminated by reasonable accommodation” and which requires an individualized analysis based on “best current medical or other objective evidence.” It noted the factors to be considered include (1) the nature of the risk; (2) nature and severity of potential harm; (3) likelihood harm will occur; and (4) imminence of harm.
Hamm, who indicated she had conducted research regarding road tests for hearing impaired individuals, was unable to produce any evidence she had done so and had previously indicated to the EEOC investigator she had not engaged in targeted research. The Court held that Werner’s “one size fits all approach” to establish a direct threat failed to create an issue of fact. Werner could not establish it had conducted any individualized analysis of whether Robinson’s disability posed direct threat.
This case is important as it walks through the types of analysis the Courts will expect from employers when denying accommodations based on available affirmative defenses under the ADA. This decision highlights the need to properly vet and document the accommodation process and be particularly diligent when asserting a reasonable accommodation is not available.
If you or your organization have questions regarding reasonable accommodations, or how to design and implement an interactive accommodation process, contact Wiley Reber Law, for legal advice that works.