Here’s a tough call to make: A deaf employee drove forklifts safely on a daily basis for years. Then, a corporate policy said he could no longer do that for safety reasons. Do you bar him from operating forklifts? And what did a court have to say?
Nicholas Siewertsen, who is deaf, worked for Worthington Steel since 1999 in Delta, OH. Since 2001, he operated forklifts, overhead cranes and other motorized equipment on a weekly basis. From 2009 into January 2011, he operated forklifts and overhead cranes multiple times per day.
Siewertsen’s safety record was very good. He received multiple awards for outstanding safety performance, and records show his supervisors considered him a responsible, safety-conscious employee.
In July 2010, he was involved in one near-miss incident. Siewertsen didn’t stop to look both ways within the plant and came within a foot of being struck by a moving forklift.
In January 2011, a deaf employee at another Worthington plant requested to operate forklifts. The manager of that plant sought guidance from the owner of a company that provided forklift training. The advice was that deafness was too much to overcome in a busy plant, and deaf employees should not be allowed to operate forklifts.
On Jan. 18, 2011, Worthington’s corporate manager for health, safety and property sent an email to all facilities laying out the company policy that deaf employees shouldn’t operate forklifts.
Soon after that, the corporate safety manager, Delta plant HR manager and two other managers at the Delta plant met to determine whether the corporate policy should be applied to Siewertsen. They also considered whether any accommodations would allow Siewertsen to operate forklifts.
The managers concluded:
- Operating forklifts at the Delta plant required sufficient hearing and audible communication skills
- The corporate policy should apply at the Delta plant, and
- There was no accommodation that would allow Siewertsen to operate forklifts safely.
The managers told Siewertsen about their decision. Specifically, they told him this was about safety and that he would continue to have meaningful work at the Worthington Delta plant.
Since he could no longer operate forklifts at the plant, his supervisors determined Siewertsen was eligible to perform only four jobs at the Delta facility. There was an immediate opening for one of the positions, and Worthington transferred him without reducing his pay.
Later in 2011, Siewertsen brought a two-count complaint under the Americans with Disabilities Act against Worthington, alleging the company:
- discriminated against him on the basis of his disability with regards to discipline, promotions and denial of a reasonable accommodation when it barred him from using forklifts, cranes and other motorized equipment, and
- limited him to only four positions at the plant, all of which involved only menial work, and made it difficult or impossible to obtain promotions.
Siewertsen and Worthington both sought summary judgment in the case.
Before we get to the judge’s decision, here are some more facts regarding the case:
- Siewertsen has been deaf since birth. However, he can feel vibrations of certain noises and sounds. His primary form of communication is American Sign Language, although he can also read and write English.
- Worthington had recertified Siewertsen as a forklift operator in August 2010.
- Siewertsen communicated with his co-workers via notepad, computer word-processing programs, instant-messaging programs, hand gestures and limited speech.
- Shippers at the Delta plant also had to communicate with drivers of about 100 trucks that entered the plant per shift. The drivers aren’t Worthington employees.
- Because of inventory stacking, there are many line-of-sight obstructions at the plant.
- Shippers used audible warning devices with operating forklifts and cranes: honking the horn on forklifts and using a buzzer to provide warnings about crane movement.
- To compensate for his deafness, Siewertsen had a strict safety protocol he used each day. He inspected the forklift’s flashing lights and emergency brakes and honked the horn, verifying the horn was working by feeling its vibrations. He had a similar set of safety steps before operating a crane, including testing a buzzer for the crane. If his co-workers looked toward him, he knew the buzzer worked. If they didn’t turn toward him, he would ask a co-worker if the buzzer had sounded when he tested it.
Which side has the better case?
In filing for summary judgment, Siewertsen and Worthington both argued no reasonable jury could find for the other side on three issues:
- Worthington conducted an individualized inquiry in determining Siewertsen couldn’t perform the essential duties of two positions at the plant
- Hearing and the ability to communicate audibly are essential functions of those positions, and
- Siewertsen’s continued operation of forklifts and cranes constitutes a direct threat to his co-workers’ health and safety.
Ultimately, a judge of the U.S. District Court, Northern District Ohio, decided that neither side should receive summary judgment – there was enough evidence that a jury could rule either way in this case on all three issues.
However, the federal judge made no secret of his opinion that Siewertsen has the better case.
In his decision, the judge wrote that Siewertsen had provided “ample evidence” to show Worthington failed to conduct an individualized inquiry to determine if he could perform the essential duties of the job.
No one from the Delta plant asked Siewertsen about his past experiences operating forklifts before the company made its decision. Supervisors also didn’t speak to Siewertsen’s co-workers. The record also suggests managers at the plant didn’t know about the safety protocols Siewertsen used each day.
Thus, there was “considerable evidence the company failed to engage in an individualized determination,” the judge wrote.
“At the same time, there is sufficient evidence – though perhaps just barely – to support a reasonable finding that Worthington performed the required inquiry,” the judge wrote.
A jury could also reach different conclusions about whether the abilities to hear and communicate audibly are essential job functions, the judge said.
Worthington presented its forklift expert who said those abilities were needed.
But Siewertsen had his own witness, an EHS expert, who said the essential requirement for operating a forklift was vision, and that Siewertsen “is very qualified to operate a forklift.”
On the third issue – whether Siewertsen’s operation of forklifts and cranes created a “direct threat” to the health or safety of others that a reasonable accommodation couldn’t eliminate – the court found once again that a jury could decide the question either way.
However, “the testimony of Siewertsen’s supervisors does not establish, as a matter of law, there is ‘high probability of substantial harm,'” the judge wrote.
At this point, the case remains undecided. Siewertsen and Worthington could try to work out an agreement, or the case could go to trial.
But as we noted above, at least one federal judge seems to lean in Siewertsen’s favor.
Like we said at the beginning: We think this one is a tough call.
What do you think? Do years of safe operation with a strict safety protocol mean Siewertsen’s operation of a forklift doesn’t provide a “high probability of substantial harm” to his co-workers? Or is the amount of risk too great to allow Siewertsen to continue to perform the duties he’s done safely for years?
Let us know in the comments below.
(Siewertsen v. The Worthington Steel Company, Dist. Court, ND Ohio, No. 3:11CV2572, 9/25/15)