Court: Court of Appeals for the Eighth Circuit; November 9, 1999; Federal Appellate Court
Southwestern Bell Telephone Company (SWB) appealed a decision from the United States District Court for the Western District of Arkansas granting injunctive relief and attorney's fees to employee Ricky Belk under the Americans with Disabilities Act (ADA). SWB raised five grounds for appeal, including the trial court's refusal to instruct the jury on business necessity. The Eighth Circuit found it necessary to remand the case for a new trial specifically on the jury instruction issue, rendering the other arguments moot.
Ricky Belk, who has disabilities resulting from polio requiring him to wear a leg brace, has been employed by SWB as a Service Representative since 1981. In 1995, he applied for a Customer Service Technician (CST) position, which involved physical tasks such as lifting heavy materials and working in uncomfortable positions. SWB administered a series of tests for CST applicants, including a physical performance test (PPT) comprised of four components, which Belk passed except for the leg lift.
Belk requested accommodations for the leg lift and sit-up portions of the PPT due to his condition, proposing alternative methods to demonstrate his capabilities. SWB denied these requests but modified the leg lift test slightly. Despite this adjustment, Belk failed to meet the minimum required weight for the leg lift. He subsequently filed a complaint alleging that SWB violated the ADA by not providing reasonable accommodation. The jury concluded that SWB discriminated against Belk but did not award damages or reinstatement, believing SWB would have made the same employment decision regardless of his disability. The district court indicated that the jury had rejected SWB's business necessity defense but expressed concerns regarding the appropriateness of the jury instruction on the "Same Decision" defense.
The court upheld the verdict, emphasizing that Belk did not challenge the "Same Decision" instruction or the jury interrogatory. A broad injunction was issued against SWB, prohibiting any discriminatory employment practices against Belk due to his disability, particularly regarding qualification standards and selection criteria for the CST position. SWB was required to provide reasonable accommodations for physical performance tests and safety training for all applicants, including those with disabilities. SWB's motions to stay the injunction and for judgment as a matter of law were denied, leading to the current appeal.
Under the ADA, employment discrimination against qualified individuals with disabilities is prohibited. A "qualified individual with a disability" can perform essential job functions with or without reasonable accommodation. The definition of "disability" includes: A) a physical or mental impairment that substantially limits major life activities; B) having a record of such impairment; or C) being regarded as having such an impairment. To establish a prima facie case under the ADA, Belk must demonstrate he is disabled as defined by the Act, qualified for the position with or without reasonable accommodation, and suffered an adverse employment action due to his disability.
If an employee shows that their disability was a "motivating factor" in an employment decision, they are entitled to relief. However, if the employer proves that the same decision would have been made regardless of the disability, the employee's recovery is limited to declaratory and injunctive relief, along with some attorney's fees, but excludes reinstatement, back pay, or damages.
In Sutton v. United Airlines, the Supreme Court ruled that individuals' disabilities must be assessed with reference to mitigating measures. In this case, twin sisters with severe myopia were found not to be disabled under the ADA because, with corrective lenses, they had 20/20 vision. The Court rejected the EEOC and DOJ's guidelines that determined disability without considering mitigating measures.
The Court emphasizes that determining the existence of a disability requires an individualized assessment, cautioning against reliance on general guidelines that may lead to speculation about a person's condition. In the case involving Belk, SWB contends that he is not disabled under the ADA because he can perform various physical activities with the aid of a leg brace. However, the Court rejects this argument, affirming that the use of a corrective device does not negate a disability. It concludes that Belk is indeed disabled, particularly in the major life activity of walking, due to significant limitations caused by his condition despite the brace. The Court aligns its reasoning with the Sutton decision, which instructs consideration of both mitigating measures and their negative effects when assessing disability.
Regarding job-relatedness and business necessity under the ADA, the statute prohibits discrimination through qualifications or tests that disproportionately exclude individuals with disabilities unless justified as job-related and necessary for the position. Employers must validate their selection criteria for relevant skills and physical demands. Belk claims his case is based on disparate treatment, arguing against SWB's ability to invoke a business necessity defense. SWB counters that legal precedents do not support Belk’s assertion. The Court agrees with SWB, clarifying that Belk's ADA claim, which includes allegations of both failure to accommodate and disparate impact, allows SWB to raise the business necessity defense as long as the rationale for the lack of accommodation is potentially job-related.
Belk does not contest that SWB's refusal to accommodate him was pretextual, limiting his ability to leverage the difference between disparate treatment and disparate impact discrimination against SWB's business necessity defense. SWB cites *Allen v. Entergy Corp.*, where the court upheld a summary judgment favoring the employer after a group of African-American employees claimed a selection test led to discriminatory layoffs. The court affirmed that the plaintiffs did not counter the employer's evidence of business necessity adequately, relying only on conclusory allegations. SWB asserts it provided compelling evidence of job-relatedness and business necessity through Dr. Deborah Gephardt, who developed the Physical Performance Test (PPT). She outlined the test's purpose—evaluating physical performance and addressing workplace safety—and detailed its development process, ensuring compliance with ADA requirements. SWB claims the district court erred by not instructing the jury on business necessity when it refused Instruction 20, which stated that Belk did not qualify for the position after failing the PPT. SWB argues that an employer can utilize qualification standards as long as they are job-related and consistent with business necessity. The court deemed SWB's proposed instructions cumulative. SWB references prior cases emphasizing the importance of business necessity instructions in discrimination cases, asserting that the district court abused its discretion in denying the instruction.
The court affirmed that the plaintiff's rebuttal evidence strongly indicated a discriminatory motive from the defendant, thus concluding that the lack of a business judgment instruction was not prejudicial to the defendant, as seen in *Stemmons*. Conversely, in *Scamardo*, the absence of such an instruction was deemed reversible error since it was central to the defense, and the plaintiff’s evidence was less compelling than in *Stemmons*. The current case resembles *Scamardo* more closely, as SWB provided sufficient evidence of business necessity, while Belk's counsel effectively cross-examined Dr. Gephardt and presented testimonies from amputees who could not pass the PPT yet performed similar work elsewhere. Belk testified that he was informed he would not receive the position due to his inability to climb poles, which is essential for the role. The court ruled that SWB was entitled to a business necessity instruction for the jury to assess Dr. Gephardt's testimony properly. The failure to provide this instruction constituted an error that prejudiced SWB, as it hindered the jury's ability to evaluate the business necessity defense adequately. The court clarified that while SWB is entitled to an appropriate instruction, it does not require the exact language proposed. Consequently, the court vacated the district court's decision to grant injunctive relief and attorney's fees, remanding the case for a new trial, which presents Belk with another chance to succeed on his discrimination claim. Additionally, the court upheld the district court's denial of SWB's motion for judgment as a matter of law based on the jury's credibility findings, noting that evidence regarding Belk's burden of proof need not be discussed given the remand for a new trial.
The district court indicated that the jury should not have received the "Same Decision" instruction due to SWB's lack of evidence on the matter. Under 42 U.S.C. 12113(a), it is permissible for a defendant to argue that qualification standards or tests that may exclude individuals with disabilities are job-related and necessary for business. Human Performance Systems, Inc. develops employee selection and evaluation procedures, utilizing a Physical Performance Test (PPT) adjusted for various job levels within the company. Jobs were categorized into three groups based on physical demands, with Group A encompassing the most strenuous positions, including the CST role. Dr. Gephardt noted that the ADA, Uniform Guidelines on Employee Testing, and the Civil Rights Act of 1991 influenced the PPT's creation. There is a dispute regarding a conversation between Belk and Personnel Director John Dacus, with Belk asserting he could not climb poles with hooks and SWB contending he claimed he could not climb poles at all. However, this disagreement is not pivotal to the examination of the business judgment instruction issue.
