Annals of Disability: A Bridge Worker with a Fear of Heights
Thursday, June 9, 2011 | 0
By Jon Coppelman
Lynch Ryan & Associates
Darrell Miller worked for the Illinois Department of Transportation (IDOT) as part of a crew that maintained bridges. He worked without any problems for five years, but then encountered some difficulty with the job related to a fear of heights. In the most dramatic event, he and another crew member had to "go over the edge" of a bridge over the Mississippi River to change the navigation light bulbs directly above the river. The court describes the incident:
Miller had to climb down a ladder on the side of the bridge to reach the station that held the light fixtures. Some of the stations would have required him to stand on a bridge beam while wearing a lifeline. When Miller attempted to change a bulb that would have required him to stand on a bridge beam, he was unable to complete the task. He suffered a panic attack and was taken by ambulance to a hospital. That was the first, last, and only time Miller was unable to complete an assigned task because of his fear of heights.
Subsequent to treatment for this panic attack, Miller was diagnosed with acrophobia, a fear of heights. Following a series of incidents where his requests for accommodation were rejected, he was fired.
Given the bare outline of what took place, it would appear that the employer was within its rights to terminate Miller. He could not perform some "essential" job functions. In fact, a lower court dismissed Miller's claim of discrimination, granting summary judgment for the IDOT. However, the 7th Federal District Court took the time to examine not just Darrell Miller, but the crew of which he was part. Their thoughtful and detailed ruling, from which we quote at some length, leads to an interesting and perhaps counter-intuitive conclusion.
<b>The Devil in the Details</b>
The Court noted that not all of the tasks associated with the job involved heights:
As a highway maintainer assigned to a bridge crew, Miller was responsible for a variety of tasks, many of which could be performed from the ground. Those tasks included operating and repairing maintenance vehicles and equipment, including trucks, pavement marking equipment, tractors, mowers, snow plows, and jack hammers; maintaining large culverts, abutments, guardrails, and drainage installations; spreading salt, sand, gravel, and asphalt; directing traffic during maintenance operations; cutting grass, weeds, and brush; repairing signs and digging post holes; cleaning and maintaining the crew's headquarters; disposing of trash and highway debris; and record-keeping.
In addition, Miller was able to perform most, if not all, of the job:
From the outset of his employment, Miller had occasional difficulty working from heights, particularly when he worked in an unsecured environment. When he began work he had not been formally diagnosed with acrophobia, but Miller informed IDOT and the lead worker of his bridge team, Steve Maurizio, that he had a fear of some heights and that there were a few tasks that he would not be able to do. Specifically, he informed Maurizio that he would not be able to "walk a bridge beam." In spite of his fear, Miller was able to perform work in an elevated, hydraulically lifted "snooper bucket" at heights of up to 80 feet, and he was able to crawl on the arch of a bridge on a catwalk. He estimated that his fear would be triggered and he would have problems with less than three percent of his job description, but even then he was able to complete his assigned tasks on all but one occasion.
Finally, the court observed that there were a variety of "reasonable accommodations" afforded different members of the crew:
Until early 2006, IDOT informally accommodated Miller by allowing other members of his team to handle those tasks for him, just as other team members' conditions or limitations were accommodated. For example, Maurizio was unable to weld. Another co-worker refused to ride in the snooper bucket, was not required to climb the arches of an interstate bridge linking Illinois to Kentucky, was unable to spray bridges because of his allergies, was not required to mow the yard, and was not required to rake patching debris. Other crew members would swap assignments as needed to enable the crew to complete those tasks. In short, the evidence would allow a jury to find that the team worked effectively as a team, taking advantage of each member's abilities and accommodating each member's limitations.
<b>Essential Functions, Reasonable Accommodations</b>
Then the court examined the crux of the case: was Miller able to perform the essential functions of the job, with or without accommodation:
We are confident that some high work in exposed or extreme positions is an essential function of the bridge crew as a whole. IDOT would have us take that point a step further to find that any individual assigned to the bridge crew had to be able to perform each and every task of the entire bridge crew. That would require finding that every task required of the bridge crew as a whole was an essential task of each bridge crew member. On this record, we cannot make that finding as a matter of law. Plaintiff has come forward with substantial evidence showing that his bridge crew did not actually work that way. The bridge crew worked as a team. No one person was assigned permanently to any one task. Although individual members of the team did various tasks as needed, there was no requirement that the bridge crew members rotate from task to task in an organized, routine fashion, such that it was necessary for any one member of the bridge crew to be able to do every task of the bridge crew as a whole.
In a footnote, the court tackles the unlikely possibility that an entire crew might suffer from acrophobia:
We recognize that if most or all members of a bridge crew had acrophobia like Miller's, the crew could not perform all of its essential duties. If and when such an extreme case might arise, we are confident that the law would accommodate an employer's need to get its work done. In this case, however, the evidence showing that plaintiff had actually been accommodated as he requested shows that the employer is not entitled to summary judgment on this theory.
The 7th District Court's reasoning is at once both compelling and intriguing. Miller, as a member of the crew, was able to do enough of the job to allow the team to proceed unhindered and unimpeded. They accommodated Miller and his co-workers routinely in the course of determining which crew members were assigned to specific tasks. Reasonable accommodation for everyone was an ongoing part of the job. Thus, when confronted with a diagnosis that appears to preclude bridge work, the court concluded that accommodating Miller was not only reasonable, but that IDOT had been doing it all along.
The purpose of the ADA is to welcome and sustain people with disabilities in the workplace. Conventional thinking all too often concludes that people who appear to be disabled, or who actually are disabled, cannot do the job. Can a person with a fear of heights work on bridges? In these specific circumstances, yes, he can.
<i>Jon Coppelman is a principal with Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with his permission from the firm's blog, http://www.workerscompinsider.com</i>
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