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Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position

Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position
Allmond v. Akal Security Inc., No. 07-15561, USCA 11th Circuit

Wilbur Allmond sued Akal Security Inc. after it terminated him from his position as a security guard after he failed to pass the required hearing examination.

Akal had a contract with the Federal Marshals Service to provide security officers at federal courthouses and had assigned as a security officer at the federal courthouse in Columbus, Georgia.

The Marshals Service requires security officers to pass a hearing test without the help of a hearing aid. As a new security-officer applicant, Allmond was required to take a preemployment medical examination, which included a hearing test subject to the hearing-aid ban.

Although Allmond did not use a hearing aid before or during his employment with Akal Security, he was required to submit to additional testing and submit additional medical information.
Ultimately he was disqualified due to his ?decreased ability to distinguish speech in the absence of background noise . . . .? The Marshals Service notified Akal Security of the situation; and Akal Security, as it was required to do under its contract with the Marshals Service, terminated Allmond?s employment.

The Circuit Court of Appeals reviewed the hearing-aid ban for job-relatedness and business necessity.

Job-relatedness is used in analyzing the questions or subject matter contained in a test or criteria used by an employer in making hiring or promotional decisions.? In contrast, business necessity ?is larger in scope and analyzes whether there is a business reason that makes necessary the use by an employer of a test or criteria in hiring or promotional decision making.?

In this instance the court found that the hearing-aid ban met both criteria.

As a result a study, the government concluded that security officers must possess a certain level of unaided hearing to perform those functions adequately at all times. To guarantee that all security officers have that required hearing, the Marshals Service -- at the recommendation of the doctor conducting the study -- adopted the hearing-aid ban.

The hearing-aid ban is also consistent with business necessity. Because hearing aids may malfunction, break, or become dislodged, the Marshals Service adopted the ban to ensure that all officers can perform their jobs safely and effectively in the event they must rely on their unaided hearing.

The decision noted that Allmond characterized this justification ?as based on events that may never occur.? The Circuit Court said that ?neither the ADA nor the Rehabilitation Act requires employers to forgo a qualification standard ?until a perceived threat becomes real or questionable behavior results in injuries,? citing Watson v. City of Miami Beach, 177 F.3d 932.

Concluding that Ajal had successfully presented an affirmative business-necessity defense, the court dismissed Allmond?s appeal.

The full text of the decision is posted on the Internet at:
http://www.ca11.uscourts.gov/opinions/ops/200715561.pdf

Full post as published by New York Public Personnel Law on March 03, 2009 (boomark / email).