Trouble Ahead, Trouble Behind: ADA Week continued

Nearly everyone recognizes the Grateful Dead song “Casey Jones.”  It was first performed live by the Dead on June 20, 1969, at Fillmore East in New York (it’s track 8 on Workingman’s Dead).  It tells the true story of John Luther “Casey” Jones, from Cayce, Kentucky.

Casey was a railroad engineer who drove a fast train and who died in 1900 when he collided with another train. A few days after the accident, Jones’s friend Wallace Saunders wrote “The Ballad of Casey Jones,” as a tribute. The song was adapted by William Leighton and sung by vaudeville artists.  It made Casey Jones an American legend.  

But – important point here – there was no cocaine involved. When Jerry Garcia and Robert Hunter wrote the Dead’s version, they added that part.  Artists have license to tell semi-true stories.

So, you may ask, what does any of this have to do with the ADA?  Well, I cannot get the song out of my head after reading the announcement that the EEOC has sued Union Pacific Railroad for disability discrimination. EEOC v. Union Pacific RR., Civil Action No. 23-cv-03030 (D. Minn., complaint filed 9/29/23).  Here’s the story.

According to the EEOC’s complaint, Union Pacific regularly requires its conductors and locomotive engineers to take vision tests, including tests of color vision, pursuant to Federal Railroad Administration (FRA) certification requirements. The Railroad says that it’s important for engineers to be able to see color differences – say, between green (go) and red (stop).  Fair enough.  But Union Pacific also requires employees to pass a “light cannon” test.

The EEOC alleges that the “light cannon” test does not replicate real world conditions or accurately assess whether someone can identify the color of railway signals.  The Commission has sued on behalf of employees who “all passed an initial color vision screening test prior to being required to take the light cannon test or provided medical documents confirming they did not have a color vision deficiency that would have prevented them from doing their jobs. However, when they failed the light cannon test, Union Pacific removed them from their positions, put them on indefinite leave and effectively fired them, despite having successfully performed as conductors or locomotive engineers for Union Pacific for years.”

Union Pacific is accused of violating the ADA by screening out employees because of a real or perceived disability and subjecting them to “unlawful medical inquiries.”  The EEOC’s regional attorney for Chicago was reported as saying that “everyone wants railroads to be safe,” but “firing qualified, experienced employees for failing an invalid test of color vision does nothing to promote safety and violates the ADA.”

Everyone wants railroads to be safe indeed.  This lawsuit comes on the heels of the horrific February 2023 train derailment in East Palestine,  Ohio. The National Transportation Safety Board inquiry into the reason is ongoing.  Reporting does not suggest that engineer error was a factor.  Yet, like planes and automobiles (particularly large ones like tractor-trailers and buses), trains and the people responsible for making them go, have a heightened responsibility.

The issue here involves the use of the ADA’s exemption from coverage of individuals who may cause a direct threat to themselves or others in performing a job.  The Supreme Court affirmed the validity of this exclusion in Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002).  The EEOC regulation on “direct threat” provides:

“Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:  (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.”  29 C.F.R. § 1630.2(r).

The EEOC’s FAQ on direct threat puts it more simply:

Q.  Can an employer refuse to hire me because he believes that it would be unsafe, because of my disability, for me to work with certain machinery required to perform the essential functions of the job?

A.  The ADA permits an employer to refuse to hire an individual if she poses a direct threat to the health or safety of herself or others. A direct threat means a significant risk of substantial harm. The determination that there is a direct threat must be based on objective, factual evidence regarding an individual’s present ability to perform essential functions of a job. An employer cannot refuse to hire you because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

The EEOC’s litigation with Union Pacific is an important case to watch.  There are lots of questions that need to be answered as the case proceeds.  Direct threat cases are highly fact specific.   

The takeaway here?  Employers are not required to permit individuals to work in jobs that may cause injury to themselves or others as the result of their disability, when that threat cannot be sufficiently reduced with a reasonable accommodation.  At the same time, before taking steps to exclude an individual from employment, engage in the interactive process, and be sure you are relying on current and reasonable medical judgment. 

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