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Allmond v. Akal Security Inc., No. 07-15561 (11th Cir. Feb. 20, 2009)

| Feb 19, 2009 | Daily Developments in EEO Law |

The week ends with the Eleventh Circuit upholding a hearing-aid ban for federal court security officers as a “business necessity” under the Rehabilitation Act and the Americans with Disabilities Act.

Allmond v. Akal Security Inc., No. 07-15561 (11th Cir. Feb. 20, 2009): After the Oklahoma City bombing in 1995, the federal government reexamined the physical requirements for officers employed privately at federal courthouses to provide security. “Among the changes, [Dr. Richard Miller, Director of Law Enforcement Medical Programs] suggested that all officers (officers may wear hearing aids on the job) pass a hearing test without the help of a hearing aid — a hearing-aid ban during testing — to qualify for the position. According to Dr. Miller, this hearing-aid ban would ensure that all officers can perform effectively in the event their hearing aids experience interference, become dislodged, or otherwise fail on the job. The Marshals Service implemented many of Dr. Miller’s recommendations, including the hearing-aid ban.”

The plaintiff Wilbur Allmond failed the test without his hearing aid and was terminated under the security company’s contract. The plaintiff sued both the company and the U.S. attorney general. But the panel holds, affirming the district court, that the defendants established a business necessity for the ban as a matter of law under 42 U.S.C. § 12113(a) of the ADA (obviating any further examination into whether the employee was disabled for purposes of either act). The panel holds that the ban is job-related (the government study indicated that officers must possess a certain level of acuity at all times, unaided by equipment). It also holds that it is consistent with business necessity.

“[T]he Marshals Service is entrusted to protect the federal courts and relies heavily on security officers to carry out this duty. Because hearing aids may malfunction, break, or become dislodged, the Marshals Service adopted the ban to ensure that all officers can perform their jobs safely and effectively in the event they must rely on their unaided hearing. When considered in the light of the tremendous harm that could result if a security officer could not perform the essential hearing functions of his job at a given moment, we accept this justification as legitimate and wholly consistent with business necessity.”

Finally, the Court holds that the employee failed to produce a reasonable accommodation that would allow him to pass the test: “[H]is only suggestion is to remove the hearing-aid ban entirely. That proposal is not
reasonable: it destroys the very standard we have just upheld as a legitimate business necessity.” So summary judgment is affirmed.

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