A person EEOC identifies as Antwan applied to be a Customs & Border Protection (CBP) Agriculture Specialist where he would check for food and plants being brought into the US illegally by travelers or importers. He was and is “profoundly deaf” and due to a speech impairment uses American Sign Language. Although he met all the other requirements, CBP medically disqualified him because it concluded he would “have difficulties, communicating using a telephone to gather and exchange information and communicating verbally with members of the staff and public…Complainant’s hearing loss and speech impairment…would likely affect the safe and efficient performance of the essential job tasks.” Here is how Antwan overcame CBP’s inability to hear the law and wound up with years of back pay, other benefits and the job.

When CBP rejected him, it offered him a chance to apply for a waiver of the medical requirements. Antwan responded with a lengthy letter recounting his qualifications and experience with the hiring process. The letter identified two other CBP employees who were deaf and working in the same CBPAS position he applied for. He also noted that he had communicated with hearing people for his entire life, describing specific examples of how he used gestures, writing, and readily available assistive technology to successfully communicate with past employers, co-workers and the public on a daily basis. He noted that he had highly developed visual perception, as a result of his disability, and that with hearing aids, he would be able to hear gunshots in an active shooter scenario.

CBP rejected his appeal reasoning that because CBP Agricultural Specialists “work in a law enforcement environment,” a CBPAS needed to be able “to hear and interpret conversation or localize a sound source… [and] to communicate and exchange information in emergency situations such localizing gun shots, and relay that information without relying on technological assistance because that technology may not be available.”

Here is why EEOC rejected the agency’s defense.

  1. The official CBP job “Overview” statement specifies that the CBPAS position is not itself a law enforcement or weapons carrying position and lacks the other physical requirements of a law enforcement officer.
  2. In order to exclude an individual on the basis of future possible injury, the Agency must show there is a significant risk, i.e., a high probability of substantial harm; a speculative or remote risk is insufficient. That is more than that an individual with a disability seeking employment stands some slightly increased risk of harm.
  3. In determining whether an individual would pose a direct threat, the factors to be considered include: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. A determination of significant risk cannot be based merely on an employer’s subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the agency must gather information and base its decision on substantial information regarding the individual’s work and medical history.
  4. Antwan’s hearing tests alone did not constitute adequate evidence that he posed a significant risk of substantial harm to the health and safety of himself or others which could not be eliminated or reduced to an acceptable level. While the Waiver Review Board did allow Complainant to submit evidence regarding the various strategies he used to compensate for his disability, the evidence does not show that the Board applied its concerns about Complainant’s limitations to the particular environment of the position in question – an urban international airport – despite the fact that the record was clear that the duties of the position and, among other things, the use of detection technology significantly varied based on the duty station of the incumbent. As such, we conclude the Agency failed to conduct an adequate individualized assessment of factors such as the likelihood that potential harm would occur if Complainant was hired into the position at the Miami airport. Moreover, the Agency has not adequately distinguished Complainant from the two other Agency employees working in the same position with very similar hearing impairments.

Antwan wound up with more than three years of retroactive salary, promotions, compensatory damages, and other financial benefits. This decision is a good guide for helping anyone rejected from a promotion or reassignment because safety concerns. Check out Antwan N., v. Alejandro N. Mayorkas, Sec’y, Dep’t of Homeland Security (CBP), EEOC No. 2022001315 (2022).

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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