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April 08, 2011
Injured Worker Claims Disability Discrimination; How the Employer Successfully Defended Itself

In May 2004, James Stiefel was hired as an ironworker for the Bechtel Corporation at the San Onofre Nuclear Generating Station. He injured his left hand on the job during the winter in 2006. An orthopedist put the hand in a cast and cleared him for light duty with no use of that hand.

Five weeks after Stiefel was injured, Bechtel laid him off. Stiefel subsequently filed a lawsuit claiming Bechtel violated the Americans with Disabilities Act (ADA) in refusing to rehire him, even though certain Bechtel employees promised at the time of his termination to help him get back to work when his cast came off. The case eventually made its way to the U.S. Court of Appeals for the Ninth Circuit, whose decision shows how employers can beat injured workers' disability discrimination claims.

Discrimination Under the ADA

The ADA prohibits employers from discriminating against a qualified individual with a disability in all aspects of the employment process, including recruitment, hiring, pay rates, upgrading, and selection for training. The ADA also requires a covered employer (generally, employers with 15 or more employees) to accommodate a qualified individual with a disability unless it can show that by doing so it would suffer an undue hardship.

To be protected by the ADA, an individual must have a disability, have a record of a disability, or be regarded as disabled. The employee must also be qualified to perform the essential functions of the job in question, with or without a reasonable accommodation. Even if an employee does not have a valid claim of discrimination under the ADA, he or she may have a valid retaliationclaim—asserting that the employer unlawfully retaliated against him or her after a reasonable accommodation was requested or after a claim of disability discrimination was made.

Practice Tip

Your hiring process should be clearly detailed in writing, and any accommodations made for disabled workers should be carefully documented. Having a clear hiring process and a record of providing reasonable accommodation can help you defend yourself against discrimination claims.

Roll Call Process Plays a Role

Under Bechtel's collective bargaining agreement with the union, ironworkers were hired based on referrals from the union. Out-of-work union members would add their names to a list and show up for roll calls that would result in referrals to companies that were hiring. However, after he was laid off, Stiefel didn't add his name to the out-of-work list at his union hall for three or four months; following that, he missed many union roll calls for several more months.

In his lawsuit, Stiefel claimed that several people at Bechtel had told him that the company would not rehire him without a full medical clearance, leading him to believe that it would be futile to add his name or attend roll calls. As a result, Stiefel remained at the bottom of the out-of-work list. Bechtel argued that because Stiefel remained at the bottom of the out-of-work list, the company never had a chance to rehire him.

Decisions in other Ninth Circuit cases have established that a worker who does not apply for a job can file a legitimate discrimination claim if he or she can demonstrate that, because of discriminatory practices by the employer, applying for the job would have been futile. This was Stiefel's argument: He had no chance to be hired, so there was no point to engaging in the hiring process.

But Stiefel's own deposition testimony undermined his argument. He testified twice that personal obligations and schedule conflicts kept him away from the roll calls; he said nothing about not attending the roll calls because he believed it would have been futile. He did provide the names of several people who had told him that he would not be hired without an unrestricted medical release, but only one of those individuals was actually involved in the hiring process at Bechtel. The court also noted that Bechtel had accommodated other employees' disabilities.

Court Finds No Discrimination

In the end, the court sided with the employer on the discrimination issue because:

The employer accommodated other disabled workers. Although employers are not required to comply with every request for accommodation, they must provide reasonable accommodation for the known disability of a qualified individual—as long as doing so will not impose an undue hardship on the business. Bechtel showed that it had accommodated multiple workers with disabilities, and Stiefel testified that he was aware of those instances but believed his case was different.

The worker didn't follow procedures. Bechtel successfully argued that it did not have a chance to rehire Stiefel because he missed many union roll call meetings, and as a result, his name was at the bottom of the out-of-work list. Stiefel's argument that it would have been futile for him to follow the established hiring procedures failed because of Bechtel's record of disability accommodation in other cases.

Stiefel v. Bechtel Corporation, 9th Cir. Court of Appeals, No. 09-55764, 2010

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