Lt. Philip Gerard: Why don't you stop running and turn yourself in, Kimble?
Dr. Richard Kimble: There's a man I have to find. A one-armed man. When I find him, I'll turn myself in.
Lt. Philip Gerard: Still sticking to that same tall tale? "A one-armed man killed my wife." The truth is … you're guilty not only in my eyes, but in the eyes of the law.
– The Fugitive (1965).
In Rosebrough v. Buckeye Valley High Sch. (6th Cir. 8/8/12) [pdf], the 6th Circuit concluded that an individual born without a hand was qualified under the ADA to work as a bus driver trainee.
Here are the facts. Tammy Rosebrough, born without a left hand, applied for cook's position at Buckeye Valley North High School. During the interview process, a supervisor told her that if she was interested in a position the school was in desperate need of bus drivers. Rosebrough applied for the bus driver job. The Ohio Department of Education requires a waiver before an individual missing a limb is allowed to operate a school bus, for which Rosebrough also applied. While she was waiting to receive her waiver, the school district began Rosebrough's training. Perceiving bias against her because of her missing hand, Rosebrough never finished her training, and ultimately sued for disability discrimination.
The Court never reached the issue of whether the school district discriminated against Rosebrough on the basis of her disability. Instead, it reversed the trial court's determination that she was not "qualified" to work as a bus driver trainee, and remanded the case to be decided on the remaining issues.
The plain language of the ADA covers discrimination on the basis of disability during job training…. The statutory inclusion of "job training" protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer.
When the events at issue in this litigation occurred, Rosebrough was in the job training period necessary to obtain her CDL and learn how to perform as a school bus driver…. It is unnecessary to speculate as to whether she was "otherwise qualified" for the training position because Buckeye Valley concedes Rosebrough "was qualified to be a 'trainee,' was in fact a 'trainee,' and was given the training."
In other words, the Court did not permit the school district to argue that Rosebrough wasn't qualified to work as a bus driver because it permitted her to train for the position.
The odds are slim that you will have a one-armed applicant seeking to drive one of your commercial vehicles. Yet, the lesson from Rosebrough is much broader. Allowing an employee to work in a position makes it difficult to argue later that the employee was not qualified for that same position.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
