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In a recent analysis of the California Fair Employment and Housing Act, the Ninth Circuit U.S. Court of Appeals relieved United Parcel Service of any duty to accommodate certain disabled job applicants. The court concluded that the hiring of vision-impaired drivers would “endanger the health and safety of others to a greater extent than if an individual without a disability performed the job.” (See EEOC v. UPS, 424 F.3d 1060, 1074 (2005).) The court relied on what has become known as the “safety of others” defense to accommodation. (Cal Gov. Code �12940(a)(1); Cal. Code Regs., tit. 2, �7293.8(e).) This column will explore the “safety of others” defense in the employment of law enforcement and fire personnel. Should the “safety of others” defense be applied more broadly when the very definition of the job is protection of public safety? Does this defense relieve public-safety employers of some or all of the duty to accommodate their disabled applicants or employees? ‘SAFETY OF OTHERS’ DEFENSE FEHA “does not prohibit an employer from refusing to hire or discharging an employee … where the employee, because of his or her … disability … cannot perform [the job's essential] duties in a manner that would not endanger … the health or safety of others even with reasonable accommodations.” (Cal. Gov’t Code �12940(a)(1).) This so-called “safety of others” defense has been expressed in the Fair Employment and Housing Commission regulations (and in the commission’s decisions) as follows: It is a permissible defense for an employer or other covered entity to demonstrate that after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job. (Cal. Code Regs., tit. 2, �7293.8(d).) Ultimately, this affirmative defense requires an individualized showing that safety would be compromised by each employee’s performance of his or her job duties. An employer must prove this defense by a preponderance of the evidence, and the safety defense is not available under Title VII. (See Raytheon Co. v. Cal. Fair Employment & Hous. Comm’n., 212 Cal.App.3d 1242, 1251 (1989).) EARLY CASES There has long been a recognition by courts that special standards should apply to safety employees. In the early 1990s, for example, the Second District Court of Appeal twice determined that safety considerations justified weight limitations for paramedics and ambulance drivers. (See McMillen v. Civil Service Comm., 6 Cal.App.4th 125, 131 (1992); Hegwer v. Bd. Of Civil Serv. Comm’rs., 5 Cal.App.4th 1011, 1025 (1992).) In both cases, the court found that the risk to public safety constituted “cause” for discipline because of the specific employment at issue. Although neither case directly applied the “safety of others” defense, the court’s safety concerns highlight the policy considerations driving the defense. In McMillen, the court noted that the employer presented studies demonstrating that “excess fat” or obesity could affect agility, cause fatigue and generally inhibit effective and safe job performance. According to the court, an employee’s failure to meet reasonable weight requirements “posed a risk which, based on the studies that the [employer] had before it, could not be countenanced.” ( McMillen, supra, at 131.) Upholding the employer’s discipline decision, the Second District framed the safety issue this way: … the department need not wait for disaster to strike before taking action: the department owes a duty to the public and its employees affirmatively to avert disaster, rather than simply wait and hope it does not occur. ( Id.) Similarly, the Hegwer court determined that the need for “medically reasonable … weight limitations for paramedics was supported not by stereotyped generalizations, but by statistical studies establishing that obesity decreases the strength, agility, endurance and speed of [emergency medical services] workers and increases the risks of job-related injury, heart disease, stroke and high blood pressure.” ( Hegwer, supra, at 1025.) Further, the Hegwer court found that the employee’s “observable loss of agility and clinically measured loss of endurance … sufficiently established that [she] was incapable of performing her job in a manner that would not endanger her own health or safety, or the health and safety of others.” ( Id.) Dating as far back as 1982, the FEHC conducted a similar safety analysis to determine that a police dispatcher with diminished hearing capacity would “endanger the safety of others to a significantly greater extent than if a non-handicapped individual performed the job.” (See DFEH v. City of Anaheim, WL 36753 (1982).) In that case, the employer “produced convincing evidence of the life and death situations with which a dispatcher must not only deal, but to a great extent control.” ( Id. at 7.) The commission noted that speed of action and accuracy were critical to the job, and that every second of delay in the dispatch center could result in loss of life. ( Id.) Accordingly, the commission found that the there was simply no accommodation available that could remove the danger posed by an applicant with insufficient hearing acuity. In 1988, the commission also upheld a police department’s refusal to hire an applicant with monocular vision, finding that such a disability would “pose a significantly greater risk to the health and safety” of fellow officers and the public at large as compared to a police officer without such a physical handicap. (See DFEH v. City of Merced Police Dep’t, WL 242649 at 5 (1988).) According to the FEHC, the department made an “extraordinary showing” through medical publications, vision validation studies and the testimony of two expert witnesses that binocularity was required for the safe performance of the job of patrol officer. Again, the commission determined that “there was no evidence of an accommodation which would remove the danger complainant would pose to others.” ( Id. at 5.) Regarding an employer’s duty to accommodate, the message from these cases can be boiled down to this: “[g]reater imminency of disaster should not be required to meet standards of reasonableness.” ( Hegwer, supra, at 1025.) In other words, “even a modest increase in the risk that a problem will occur is significant when the potential consequences of that problem are very serious.” ( EEOC v. UPS, supra, at 1074.) Given the day-to-day demands of law enforcement and fire personnel, this calculus could never be more clear. PRESENT ABILITY, FUTURE RISK Repeatedly, courts have struggled with applying the “safety of others” defense when the safety risk is not immediate but would arise at some point in the future. In Johnson v. Civil Service Commission, 153 Cal.3d 585 (1984), for example, the city of San Diego was ordered to hire a firefighter applicant who suffered from a spinal condition. The court, perhaps faced with a limited evidentiary record, did not appear to appreciate fully the potential public-safety risks such a mandated hiring could have in the fire service. The duties of a firefighter include the rescue of injured citizens, the lifting and carrying of life-saving equipment, maneuvering heavy ladders, conducting evacuations while wearing air packs, applying water from cumbersome charged hoses to prevent the spread of fire, and the extraction and protection of fellow firefighters. If a firefighter with a spinal condition were to have his or her back go out or seize up in the middle of emergency activities, there would be an immediate and dire impact on public safety. Similarly, a police officer who suffers from chronic orthopedic or mental conditions that do not adversely affect current performance conceivably could create dramatic risks to the public safety if those conditions manifest themselves in the future. For example, an officer suffering from a mental disability could find the incredible pressure of a hostage situation to be completely debilitating. One officer counting on another for backup in a crisis might face the risk that the backup is unable to perform. These possible consequences are the direct result of the unique characteristics of the job of law enforcement. Ultimately, these serious safety risks suggest that a better approach would be the analysis used by the FEHC in DFEH v. Di Salvo Trucking Co., WL 114862 (1987) There the commission determined that a 25 percent chance that a truck driver’s herniated disks could cause paralysis or disabling pain was serious enough to show a “significant potential for harm to others.” ( Id. at 8.) This determination not only acknowledges the present ability to perform, but it also recognizes the gravity of future risk, especially in the event symptoms emerge while performing on the job. If a 25 percent chance of a safety problem is enough for a truck driver, what about police officers and firefighters? Like truck drivers, they drive vehicles and they often have to do so at very high rates of speed, increasing the risk to themselves and others. That driving is done while they are responding to an emergency where lives and property are at great risk. Thus, if a 25 percent chance of a future problem is enough for a truck driver, perhaps the percentage chance for police and fire should be much lower � say 20, 15 or even 10 percent? FURTHER APPLICATIONS OF SAFETY DEFENSE While FEHA’s safety defense must be “tailored to the individual characteristics of each applicant in relation to specific, legitimate job requirements” ( Sterling Transit v. Fair Employment Practice Commission, 121 Cal.App.3d 791, 798 (1981)), courts should appreciate the future consequence of accommodating safety employees whose condition may endanger others. The unique nature of public-safety employment warrants special treatment: Simply, given the nature of the work, the safety defense should be applied more broadly. Public-safety employers must be prepared to show (1) that they made individualized assessments of employees and applicants; and (2) that both objective studies and expert testimony support the specific job standards that police and fire positions typically require. If they make these showings, courts should be more willing to allow public-safety employers to rely on the “safety of others” defense. Richard Whitmore is a partner in Liebert Cassidy Whitmore’s San Francisco office, which specializes in labor and employment law for public-sector employers. � Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at [email protected].

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