Companies Can Fire Employees They Deem Too Risky

When Green Bay, Wis.-based trucking company Schneider National inducted Jerome Hoefner into the company's Million Mile Club in 2002, an award given to those who have driven 1 million miles without an accident, it seemed as though Hoefner's employment with Schneider was secure. However, after Hoefner had a fainting spell later that year, Schneider summarily fired him as "a matter of safety."

Doctors diagnosed Hoefner with a rare disorder called "neurocardiogenic syncope." Schneider has a zero-tolerance policy against hiring drivers with that disorder because it could cause them to faint while manning one of Schneider's trucks. The EEOC took Hoefner's case and argued that the disorder is a disability under the ADA for which Schneider could not fire Hoefner.

A district court disagreed, as did the 7th Circuit, which ruled March 21 that the zero-tolerance policy did not violate the ADA.

But the 7th Circuit went beyond merely excluding Hoefner from ADA protection. The ruling also includes a discussion about risk that gives employers in the 7th Circuit more latitude to determine how much risk they are willing to tolerate, which may embolden employers to rethink their hiring practices.

"Too often HR departments shirk from any confrontation with someone with a physical or mental deficit of any kind," says Tom Bowden, partner at Kollman & Saucier. "Schneider is an example where the disorder was not a disability under the law and the company prevailed by setting a high standard of zero tolerance for risk of fainting while you are behind the wheel."

Risky Business

Hoefner's case wasn't the first time Schneider's HR office had heard the medical term "neurocardiogenic syncope." Two years before Hoefner's fainting spell, employee Michael Kupsky, who was diagnosed with the disorder, drove his truck off a bridge and died. Although officials couldn't verify a link between the fainting disorder and the accident, Schneider decided to adopt a "zero tolerance" policy in terms of hiring people with the condition.

The EEOC said this practice was illegal, claiming the disorder is covered under the ADA, which says that an employee who is limited in a major life activity or "perceived as" being limited in such an activity is protected.

The 7th Circuit disagreed with the EEOC's contention that a fainting disorder brings an employee within the law's protection. "If being able to drive a huge truck or ... being able to fly a plane or guide climbers to the summit of Mt. Everest is a major life activity, then virtually the entire population of the United States is disabled," Judge Richard Posner wrote in the 7th Circuit opinion.

After tossing the ADA claim aside, the court considered the problems Schneider could have faced had Hoefner stayed on as an employee. The court painted a hypothetical picture in which 2 percent of the population is diagnosed with a fainting disorder. For a company of Schneider's size, 2 percent would represent 260 employees. The chance of one of those drivers hurting themselves or others was enough of a risk, the court ruled, to support the company's adoption of a "zero tolerance" policy.

"Posner says, and rightly so, that companies are entitled to determine how much risk they want," says Elena Baca, chair of Paul, Hastings, Janofsky & Walker's Los Angeles office. "And he looks beyond the decision and acknowledges the repercussions that could arise."

The court supported its decision with the 2002 case Chevron U.S.A. Inc. v. Echazabal, in which the Supreme Court found that Chevron did not violate the ADA when it fired a man with liver damage because his continued employment could further compromise his health.

"The fact that another employer and, as in all such cases, the worker himself are willing to assume a risk does not compel the worker's current employer to do likewise," Posner wrote in Schneider.

In addition, Posner considered the costly backlash the company could have faced had the company kept Hoefner as an employee. If he were to get in a crash, Posner says, a plaintiff's attorney could easily waive the Kupsky accident before a jury, something the company has a right to avoid. Posner ends his discussion of risk with the sage advice: "But once burned, twice shy."

Limited Application

While the ruling is good news for employers in the 7th Circuit, employers in other parts of the country shouldn't expect other circuits to adopt its reasoning.

"Schneider makes eminent sense if you have the ability to rely on Schneider, but I would not, for example, in California be able to rely on Schneider because the California statutes are much more restrictive," Baca says.

In fact, the 9th Circuit recently reached the opposite result in a case similar to Schneider. In Bates v. UPS, thousands of plaintiffs said UPS systematically discriminated against deaf employees by refusing to consider them for driving positions on the basis of their disability. The 9th Circuit found that UPS violated the ADA.

In addition, the strong facts in the Schneider case may make the ruling's future application somewhat narrow, even in the 7th Circuit. Most experts say that courts will only apply Schneider's logic to similarly strong cases where an employee with a disability presents a serious, plainly apparent risk.

Although it's unclear whether the ruling will dramatically reshape hiring practices down the line, it does show how a company's steadfastness in setting a standard and applying it to everyone who walks in the door can reduce legal risk.

"It's a lesson to be learned in not giving up your right to set standards based on physical or mental problems that employees may come in with," Bowden says.

Staff Writer

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