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Massachusetts Lawyers Weekly: Deaf firefighter fails in bias lawsuit against city
The City of Marlborough did not commit disability discrimination by failing to hire a firefighter applicant who could not meet minimum hearing requirements, the Supreme Judicial Court has decided.
The applicant argued that by refusing to allow him to satisfy the state-mandated hearing standard with the use of hearing aids, the city denied him a reasonable accommodation in violation of Chapter 151B.
But the SJC disagreed.
"Where, as here, a level of hearing acuity reflected in the hearing standard is an essential qualification for a municipal firefighter (a determination not disputed by [the applicant]) and the accommodation sought (the use of hearing aids) is not a reasonable one as determined by the Legislature, [the applicant] has no expectation of proving that he is a qualified handicapped person," wrote Justice Robert J. Cordy on behalf of the court, affirming a Superior Court judge's grant of summary judgment for the city.
The court also upheld the trial judge's dismissal of the applicant's claim that his rights under Article 114 of the state Constitution had been violated.
The 33-page decision is Carleton v. Commonwealth, et al., Lawyers Weekly No. 10-174-06. Click here to read the full text of this opinion.
Mixed reactions
"We are pleased the court agreed with the state's panel of experts in concluding that this type of hearing deficit would present a risk to a firefighter candidate, his or her co-workers, and any people caught in dangerous situations to which firefighters respond," said Terence Burke, a spokesperson for Attorney General Thomas F. Reilly, whose office argued for the commonwealth.
"The court upheld the authority of public safety officials to make hiring decisions consistent with the uniform, legislatively approved medical and fitness standards specifically tailored to meet the special demands placed on police officers and firefighters," Burke continued. "The court's decision should save municipalities from litigation that would have required a case-by-case jury determination as to each adverse hiring decision based upon the medical and fitness standards."
Harold L. Lichten of Boston, who represented the rejected applicant, said he was "shocked" by the decision.
"I was shocked because the court didn't wrestle with what I thought was the most important issue in the case — the fact that part of our claim had been brought under Article 114, a Massachusetts constitutional provision. ... The court decided the case as if it were a statutory issue, even though our focus was the constitutional issue."
The justices resolved the case as if they were trying to synthesize conflicting statutory provisions, Chapter 151B and G.L.c. 31, Sect. 61A, relating to fitness standards for firefighters, Lichten continued.
"Our position was that you don't have to synthesize the statutes because Article 114 prohibits discrimination against disabled people and, therefore, a constitutional provision trumps a statutory provision."
Lichten also criticized the court's handling of the Chapter 151B issue.
"Obviously, I think [the ruling] was wrong," he said. "The court found that allowing the use of hearing aids in meeting hearing standards could not, as a matter of law, be a reasonable accommodation when almost universally courts decide such issues as a question of fact."
Rejected applicant
Plaintiff Christopher Carleton, hearing-impaired since childhood, has been wearing hearing aids in both ears from an early age.
On April 29, 2000, the plaintiff sat for the firefighter civil service examination given by the commonwealth's Division of Human Resources. He scored 99 out of 100 and his name was placed near the top of the civil service list of potential hires.
The division notified the plaintiff in April 2001 that the City of Marlborough would be hiring two firefighters. The plaintiff informed the city that he wanted to be considered. Soon afterward, the city's fire chief contacted the plaintiff and told him to show up for a pre-employment medical exam on June 4, 2001.
Because of the city's status as a municipality within the civil service system, it was required to adhere to statewide minimum health and fitness standards for firefighters. These standards, instituted by the Legislature, fall under G.L.c. 31, Sect. 61A.
One of the standards focuses on hearing ability. It sets a maximum hearing deficiency threshold.
When the plaintiff showed up for his examination, he took the test twice, once with his hearing aids and once without — though their use was not allowed under the standard. Only "implantable" aids would be permitted
Three days later, the plaintiff learned that he had failed the hearing examination.
The plaintiff filed an employment discrimination claim with the Massachusetts Commission Against Discrimination and then sued both the division and the city in Superior Court, claiming that they had violated Chapter 151B by not allowing him to wear hearing aids during the examination.
Judge Elizabeth M. Fahey awarded summary judgment for the defendants.
Unreasonable accommodation
On appeal, the plaintiff argued that by not allowing applicants to use hearing aids at their hearing examinations, G.L.c. 31, Sect. 16 contravened the requirement under Chapter 151B that employers allow reasonable accommodations to otherwise qualified applicants.
The SJC rejected this argument.
"In an area where public safety is paramount, we do not read [Chapter 151B] to preclude a determination by the division (rather than by a judge or a jury) that an accommodation is not reasonable because it would impose an undue hardship on the conduct of the employer's (in this case the public's) business due to the dangerous type of work involved and the nature of the risk to public safety that would arise if the accommodation failed (leaving the firefighter without adequate hearing function) at a critical moment in the work," said Cordy.
This was particularly true where this type of determination "is based on consultations with medical and occupational experts in the field; is not the product of prejudice, stereotypes, or unfounded fear; and is ratified by the Legislature," he continued.
Since the statutes were not irreconcilable, they should be read harmoniously, said Cordy.
And when read that way, he said, quoting the SJC's 2001 decision in Dahil v. Police Dep't of Boston, "the statutes are consistent with and promote the Legislature's purposes and policies of protecting 'handicapped individuals from deprivations based on prejudice ... while giving appropriate weight to ... avoiding exposing others to significant health and safety risks.'"
In short, wrote Cordy, the hearing standard was such a critical qualification for a municipal firefighter that the use of a hearing aid would be an unreasonable accommodation.
Finally, Cordy noted that the plaintiff's right under Article 114 to be free from employment discrimination based on handicap should not be construed more broadly than that which is provided him in Chapter 151B.
"Because he is unable to establish that he is a 'qualified handicapped' person under that statute, Carleton's constitutional claim must fail as well," Cordy concluded.
The City of Marlborough did not commit disability discrimination by failing to hire a firefighter applicant who could not meet minimum hearing requirements, the Supreme Judicial Court has decided.
The applicant argued that by refusing to allow him to satisfy the state-mandated hearing standard with the use of hearing aids, the city denied him a reasonable accommodation in violation of Chapter 151B.
But the SJC disagreed.
"Where, as here, a level of hearing acuity reflected in the hearing standard is an essential qualification for a municipal firefighter (a determination not disputed by [the applicant]) and the accommodation sought (the use of hearing aids) is not a reasonable one as determined by the Legislature, [the applicant] has no expectation of proving that he is a qualified handicapped person," wrote Justice Robert J. Cordy on behalf of the court, affirming a Superior Court judge's grant of summary judgment for the city.
The court also upheld the trial judge's dismissal of the applicant's claim that his rights under Article 114 of the state Constitution had been violated.
The 33-page decision is Carleton v. Commonwealth, et al., Lawyers Weekly No. 10-174-06. Click here to read the full text of this opinion.
Mixed reactions
"We are pleased the court agreed with the state's panel of experts in concluding that this type of hearing deficit would present a risk to a firefighter candidate, his or her co-workers, and any people caught in dangerous situations to which firefighters respond," said Terence Burke, a spokesperson for Attorney General Thomas F. Reilly, whose office argued for the commonwealth.
"The court upheld the authority of public safety officials to make hiring decisions consistent with the uniform, legislatively approved medical and fitness standards specifically tailored to meet the special demands placed on police officers and firefighters," Burke continued. "The court's decision should save municipalities from litigation that would have required a case-by-case jury determination as to each adverse hiring decision based upon the medical and fitness standards."
Harold L. Lichten of Boston, who represented the rejected applicant, said he was "shocked" by the decision.
"I was shocked because the court didn't wrestle with what I thought was the most important issue in the case — the fact that part of our claim had been brought under Article 114, a Massachusetts constitutional provision. ... The court decided the case as if it were a statutory issue, even though our focus was the constitutional issue."
The justices resolved the case as if they were trying to synthesize conflicting statutory provisions, Chapter 151B and G.L.c. 31, Sect. 61A, relating to fitness standards for firefighters, Lichten continued.
"Our position was that you don't have to synthesize the statutes because Article 114 prohibits discrimination against disabled people and, therefore, a constitutional provision trumps a statutory provision."
Lichten also criticized the court's handling of the Chapter 151B issue.
"Obviously, I think [the ruling] was wrong," he said. "The court found that allowing the use of hearing aids in meeting hearing standards could not, as a matter of law, be a reasonable accommodation when almost universally courts decide such issues as a question of fact."
Rejected applicant
Plaintiff Christopher Carleton, hearing-impaired since childhood, has been wearing hearing aids in both ears from an early age.
On April 29, 2000, the plaintiff sat for the firefighter civil service examination given by the commonwealth's Division of Human Resources. He scored 99 out of 100 and his name was placed near the top of the civil service list of potential hires.
The division notified the plaintiff in April 2001 that the City of Marlborough would be hiring two firefighters. The plaintiff informed the city that he wanted to be considered. Soon afterward, the city's fire chief contacted the plaintiff and told him to show up for a pre-employment medical exam on June 4, 2001.
Because of the city's status as a municipality within the civil service system, it was required to adhere to statewide minimum health and fitness standards for firefighters. These standards, instituted by the Legislature, fall under G.L.c. 31, Sect. 61A.
One of the standards focuses on hearing ability. It sets a maximum hearing deficiency threshold.
When the plaintiff showed up for his examination, he took the test twice, once with his hearing aids and once without — though their use was not allowed under the standard. Only "implantable" aids would be permitted
Three days later, the plaintiff learned that he had failed the hearing examination.
The plaintiff filed an employment discrimination claim with the Massachusetts Commission Against Discrimination and then sued both the division and the city in Superior Court, claiming that they had violated Chapter 151B by not allowing him to wear hearing aids during the examination.
Judge Elizabeth M. Fahey awarded summary judgment for the defendants.
Unreasonable accommodation
On appeal, the plaintiff argued that by not allowing applicants to use hearing aids at their hearing examinations, G.L.c. 31, Sect. 16 contravened the requirement under Chapter 151B that employers allow reasonable accommodations to otherwise qualified applicants.
The SJC rejected this argument.
"In an area where public safety is paramount, we do not read [Chapter 151B] to preclude a determination by the division (rather than by a judge or a jury) that an accommodation is not reasonable because it would impose an undue hardship on the conduct of the employer's (in this case the public's) business due to the dangerous type of work involved and the nature of the risk to public safety that would arise if the accommodation failed (leaving the firefighter without adequate hearing function) at a critical moment in the work," said Cordy.
This was particularly true where this type of determination "is based on consultations with medical and occupational experts in the field; is not the product of prejudice, stereotypes, or unfounded fear; and is ratified by the Legislature," he continued.
Since the statutes were not irreconcilable, they should be read harmoniously, said Cordy.
And when read that way, he said, quoting the SJC's 2001 decision in Dahil v. Police Dep't of Boston, "the statutes are consistent with and promote the Legislature's purposes and policies of protecting 'handicapped individuals from deprivations based on prejudice ... while giving appropriate weight to ... avoiding exposing others to significant health and safety risks.'"
In short, wrote Cordy, the hearing standard was such a critical qualification for a municipal firefighter that the use of a hearing aid would be an unreasonable accommodation.
Finally, Cordy noted that the plaintiff's right under Article 114 to be free from employment discrimination based on handicap should not be construed more broadly than that which is provided him in Chapter 151B.
"Because he is unable to establish that he is a 'qualified handicapped' person under that statute, Carleton's constitutional claim must fail as well," Cordy concluded.