November 2008 Issue Number 104

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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Consider This...

Redefining Disability

When the Americans with Disabilities Act (ADA) became law in 1990, it received a mixed reaction from employers. Although many supported increased access in the workplace for those with disabilities, the law was written vaguely enough that it wasn't entirely clear what qualified as a disability under the law. Was deafness a disability if it was mitigated with hearing aids? Was asymptomatic HIV a disability? How about mood disorders that led to erratic workplace behavior?

The federal courts were in the position to interpret the meaning of the ADA in the ensuing years, and for the most part, they did it quite narrowly. The U.S Supreme Court and lower courts have on numerous occasions ruled against employees who claimed protection under the law because they were suffering from impairments that the justices did not think merited protection, such as those that could be mitigated. The courts have also held strictly to the concept of disability as something that affects a "major life activity."

What exactly is a major life activity? In the original law, this term was not clearly defined, but later guidelines written by the EEOC include such functions as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." This rather broad definition has led to contradiction and conflict over the years as the courts have interpreted the law. Is the inability to work with one's hands due to carpal tunnel syndrome a covered disability? Not according to the U.S. Supreme Court (Toyota v. Williams, 2002). What about driving, if you live in Wyoming and your job requires you to drive several hours a day, but epilepsy precludes that activity? Nope, according to the 10th Circuit Court of Appeals (Kellogg v. Energy Safety Services, 2008). Many other disability discrimination cases have been similarly decided against plaintiffs, because the disability in question just wasn't disabling enough to meet the perceived standard.

Those days are over, due to a recent law passed by Congress and due to go into effect in January 2009.The new law significantly broadens the definition of disability as follows:

1) Such term shall be construed in favor of broad coverage of individuals under the Act

2) An impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability

3) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active, and

4) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

This last provision has one, and only one, major exception-- the use of eyeglasses or contact lenses for vision impairment.

So what does all this mean? Certainly more conditions will be able to be considered disabilities under the law, and employers will have to work harder to accommodate a wider variety of conditions among workers. Employers must also prepare for potentially increased liability in the area of disability discrimination, and should begin now with training and preparation for this reality. Specific guidelines for implementing the changes are due from the EEOC in 2009.

Sources: www.govtrack.us; Business and Legal Reports, October 3, 2008

A San Diego jury recently declared it was unable to reach a verdict on the claim against the city by four firefighters that they were harassed as a result of being ordered to participate in the city's Gay Pride parade. Further charges of retaliation and First Amendment violation were found in favor of the city. A re-trial on the harassment charge has been scheduled for January 16.

Source: Union-Tribune, October 7, 2008

Grooming Standards and the Law

Last year, six Washington DC firefighters sued the city and the department because they said that the department was forcing them to shave their beards, which they maintained for religious reasons. The group included Muslims, a Jew, and several Nazarene Christians. The fire department contended that the no-beards policy was necessary for safety reasons, particularly in the use of self-contained breathing apparatus (SCBA).

The case went to the District of Columbia District Court, and the court sided with the firefighters. In his ruling, Judge James Robertson said that the city had failed to show that being clean shaven is a requirement to safely wear SCBA. "Moreover," he wrote, "the Department has conceded that, for the vast majority of firefighter activity, a perfect seal between the face mask and the face is not required for safety." The city appealed the decision and a new ruling from the appeals court is due any time.

Beards and firefighters go back a long way. Many firefighters prefer to have beards for all kinds of reasons-- convenience, comfort because of certain skin conditions, religious reasons. Some men just like the way they look.

But career fire departments have traditionally been very anti-beard. Most beard prohibitions were originally included in grooming policies, rules that also dictated length, color, and style of hair, wearing of jewelry, and other personal style issues that departments felt interfered with uniformity. In the late 1990s, after some legal challenges, many of these grooming policies morphed into safety policies, restricting personal choices in appearance on duty as it affected use of safety equipment and service to the public. Beards were targeted because they could potentially interfere with a face mask seal, thus endangering the firefighter in a toxic environment.

Do beards present a safety concern for those who wear face masks? The facts are not completely clear. During firefighting operations, most fire departments use positive pressure SCBA, which minimizes the possibility of toxic exposure, even if the face seal is not perfect. If a firefighter were using a negative pressure purifying respirator, the danger would be greater.

Does an organization have the right to prohibit the wearing of beards under any circumstances, if religious faith requires it? Here again, the law is not clear. In 2005, a judge in Philadelphia ruled that a firefighter could not wear a beard on the job, even though his Muslim faith calls for it. Freedom of religion statutes say that reasonable accommodation for religious belief in the workplace shall be made as long as it does not create an undue hardship for the employer. Certainly creating a safety hazard and liability for harm would be an undue hardship. But what if the employer just doesn't like how beards look and prefers to have the male employees clean shaven?

These and other factors will be considered in the appeals court hearing. The ruling is due any time.

Sources: Associated Press, September 29, 2007; The Jerusalem Post, September 24, 2008

 

© Linda F. Willing, 2008