The U.S. Supreme Court Jan. 19 let stand an appeals court decision that the U.S. Marshals Service's requirement that contractor-provided court security officers pass a hearing test without using a hearing aid does not violate the Americans with Disabilities Act or the Rehabilitation Act (Allmond v. Akal Sec. Inc., U.S., No. 09-379, cert. denied 1/19/10).

Akal Security Inc. hired Wilbur Allmond to work at the federal courthouse in Columbus, Ga., but fired him 10 months later after he was unable to pass all of USMS's unassisted hearing test standards. He had nearly 30 years of experience as a police officer and detective, had never used a hearing aid, and was not aware that he had any hearing deficiency. Allmond asked the justices to review the U.S. Court of Appeals for the Eleventh Circuit's February 2009 decision rejecting his challenge to the job qualification standard ( 558 F.3d 1312, 21 AD Cases 961 (11th Cir. 2009); 60 BTM 78, 3/10/09).

The appeals court affirmed a lower court's ruling for USMS and Akal, finding that they established the affirmative defense that the unassisted hearing standard adopted in 2001 is job-related and consistent with business necessity and that Allmond did not propose a reasonable accommodation that would enable him to pass the test without the use of a hearing aid. Allmond's proposal to eliminate the ban on using hearing aids during the test “destroys” the standard and therefore is unreasonable, the appeals court said.

The unassisted hearing standard is job-related, the Eleventh Circuit said, finding that “the government sponsored a detailed analysis of the security officer position to identify the essential functions of the job and the medical qualifications necessary to perform it” and concluded that a certain level of unaided hearing is necessary to adequately perform a security officer's functions at all times.

The ban on using hearing aids during the hearing test also is consistent with business necessity, the appeals court said. “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,” the appeals court said.

In his Sept. 25, 2009, petition for Supreme Court review, Allmond asserted that the ADA, the Rehabilitation Act, and Title VII of the 1964 Civil Rights Act all “prohibit the use of certain job qualification standards that have a discriminatory effect” unless the qualification standard is necessary for safe job performance. The federal appeals courts, including the Eleventh Circuit, have “recognized that the standards under these three statutes are the same,” Allmond said.

In the federal government's Dec. 18, 2009, brief opposing Supreme Court review, Solicitor General Elena Kagan argued that Allmond mischaracterized the government's position and the Eleventh Circuit's holding. The appeals court did not hold that a mere possibility of a problem satisfies the business necessity defense and instead “merely held that, on the record in this case, there was no genuine issue of material fact” that would bar a ruling for USMS and Akal, the solicitor general said.

By Susan J. McGolrick

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