On September 14, 2020, the 7th Circuit reversed an order of summary judgment in favor of a defendant-employer in a lawsuit filed by a hearing-impaired train conductor, who alleged that the defendant violated the Americans with Disabilities Act (“ADA”). Mlsna v. Union Pacific Railroad Company, No. 19-2789 (7th Cir. 9/14/2020). A railroad policy required that train employees who are exposed to noise of a certain level wear a hearing protection device. This was not a problem for the plaintiff, until a new federal railroad regulation mandated that train conductors pass a hearing test. The defendant required the plaintiff to take the test wearing a certain hearing protective device, which prevented him from passing the test. The railroad would not re-certify him, so he lost his job.
The plaintiff filed a federal lawsuit under the ADA in which he alleged that the defendant discriminated against him because of his hearing disability. The 7th Circuit reversed the district court’s grant of summary judgment, finding that material fact questions exist as to whether wearing that particular hearing protection device is essential job function of a conductor; and whether reasonable accommodations were properly considered. The 7th Circuit concluded that it did not follow, as a matter of law, that an essential function of the plaintiff’s job as a conductor was to pass the hearing acuity test while wearing the compliant hearing protection device that the defendant contended was required by the regulation. Moreover, if the regulation did not apply to the plaintiff, he may have been accommodated with other hearing protection devices that would not have prevented him from passing the hearing acuity test. Therefore, a genuine issue of material fact as to whether the defendant reasonably accommodated the plaintiff’s hearing disability also precluded summary judgment. It is worth noting that in its decision, the 7th Circuit stated that pretext is not a required element of an ADA failure-to-accommodate claim; and that when presented with an accommodation request, an employer must consider other accommodations in addition to the employee’s proposed accommodation.