The Americans with Disabilities Act (ADA) requires both employee and employer to participate in good faith in an interactive process to determine how the employees disability may be reasonably accommodated.the employee should be prepared to suggest a specific accommodation. If the accommodation is a transfer to another position, the employee should identify as specifically as possible the position(s) to which transfer would be appropriate. This lesson and others was illustrated by the Sixth Circuit's recent decision in Rorrer v. City of Stow, No 13-3272 (2/26/14).
The plaintiff, Anthony Rorrer, was a firefighter for the City of Stow, Ohio. Rorrer lost sight in an eye in a non-work-related accident. Rorrer was cleared to return to work by his treating physician and initially by the fire department's occupational physician. But the city resisted Rorrer's return and apparently prevailed upon its occupational physician to reverse his position, because he eventually opined that Rorrer was unfit for duty based on "fire regs."
The supposed disqualifying issue for Rorrer regarding the safety of his driving a fire truck on an emergency basis, given that he had sight in only one eye. He proposed two possible accommodations: (1) continue working as a firefighter and he would not drive a fire truck; and/or, (2) transfer to a fire inspectors job.
The Sixth Circuit, in a decision that both reversed a summary judgment and removed District Judge John R. Adams from handling the case on remand, ruled that both of Rorrer's proposed accommodations were reasonable. First, the court held that the evidence indicated a lack of good faith by the city, since it had refused to discuss Rorrer's reassignment at the meeting where he was fired. Second, the evidence belied city's claim that Rorrer was unsuitable for a fire inspector's job because his disability kept him from safely operating a fire truck in emergency situations, as there "is no indication on the record that a fire inspector ever actually performed this function." In other words, nonsense.
The Sixth Circuit's opinion was written by Circuit Judge Bernice Donald and was joined by Circuit Judge Eric Clay and District Judge Samuel H. Mays Jr. of the Western District of Tennessee.
Robert L. Abell
www.RobertAbellLaw.com
