In Alfred Hitchcock's classic thriller Vertigo, a police officer, played by Jimmy Stewart, loses his job after he's diagnosed with vertigo associated with his fear of heights. Although the movie focuses on his obsession with Kim Novak's character, what if instead, Stewart's character had sued the police department under the Americans with Disabilities Act (ADA)? Rather than rewriting a classic, you can imagine that Stewart plays the role of the electrician with vertigo in the following ADA case and decide for yourself whether the story will end with a shocking conclusion.

'Stroke' of bad fortune leads to uneasy situation

David Justice worked without difficulty as an electrician for nearly 10 years with Crown Cork and Seal Co., which operates a plant in Worland, Wyoming, that produces aluminum beverage cans. The plant has numerous pieces of heavy machinery, including power presses, cutters, conveyors, ovens, spray machines, unwinders, and lubricators.

In 1999, Justice suffered a stroke that impaired his ability to see, speak, walk, balance, and care for himself. After intense rehabilitative therapy, he regained his ability to perform many of his life activities but continued to suffer from vertigo, a feeling of movement when there is none, and was permanently impaired in his ability to balance. He walked with an unstable gait and otherwise appeared unsteady but was able to adapt and was actually more agile than he appeared. When he was cleared to return to work, the medical release limited him from working at heights on ladders or scaffolding because of his impaired sense of balance.

Upon his return to work, Justice was able to work safely at the plant for about two years. He worked alongside other electricians who could perform any tasks that he couldn't perform because of his restrictions, and he was permitted to work the day shift with reduced hours. Then, because of a strike, he didn't work at the plant for about eight months.

After the strike, Crown initially refused to allow Justice and another employee with similar work restrictions to return to work. The company permitted Justice to resume work after the union filed a grievance and he obtained a new medical release from his neurologist stating that he shouldn't work at unprotected heights without proper restraining devices.

Justice's new supervisor, Frank Pacheco, was unaware of his medical restrictions and asked him to work at heights without protection. After observing his difficulties with balance, Pacheco wrote a memo and met with the plant manager and supervisor about his safety concerns. A few months later, two of Crown's area managers visited the plant and observed Justice swaying and having difficulty with his balance. They held a conference call with the plant manager and the HR director to discuss his condition and their belief that he posed a danger to himself and others at the plant. Justice was then placed on an involuntary leave of absence pending further medical evaluation.

Justice met again with his neurologist, who opined that he shouldn't work at unprotected heights or in an unprotected manner around hazardous machinery. He also attended a functional capacity evaluation by a physical therapist, who reaffirmed the neurologist's opinion but didn't draw any conclusions about his ability to physically perform his job since no job description was provided.

Later, Crown sent the therapist a letter purporting to list the physical demands of Justice's job and invited her to perform an on-site evaluation of the workplace. She encountered a number of potential hazards at the plant, including slippery footing, multiple level changes, frequent tight turns, and the need to crouch under structures. She recommended that Justice be encouraged to seek employment that presented fewer obstacles to his physical safety.

However, neither Justice nor a union representative accompanied the therapist on her tour of the plant, and she didn't observe an electrician performing the tasks associated with the position. Crown's corporate medical director also reviewed Justice's medical records and concluded that he shouldn't perform assignments that required him to maintain balance, work at heights, or work near moving equipment.

'Justice' denied

After discussing the medical reports, Crown's management met with Justice and told him that he was disqualified from any assignment that required working at heights or around moving equipment and asked him what job he felt he could perform at the plant under those limitations. Although he said that he felt he could perform any available job and his experience qualified him for any job in the plant, he was reassigned as a janitor, the lowest-ranking position, with a substantial decrease in pay.

Two months after his reassignment, Justice filed a complaint with the Equal Employment Opportunity Commission (EEOC). After receiving a "right-to-sue" letter from the EEOC, he filed suit in federal district court, alleging he had been demoted in violation of the ADA. Crown asked the court to dismiss his case because he had presented no evidence that he was disabled under the ADA and he posed a direct threat to workplace safety. The court agreed on both counts and dismissed the case without a trial.

According to the court, Justice hadn't shown that Crown regarded him as being disabled or suffering an impairment that substantially limited one or more of his major life activities, and the company rightly considered him a direct threat to himself and others in the workplace. Justice appealed the decision to the Tenth U.S. Circuit Court of Appeals, which covers Utah as well as Wyoming.

Proving disability

The Tenth Circuit reversed the district court's decision to dismiss the case without a trial by first concluding that Justice had proven "disability" under the ADA. Rather than arguing that he was actually disabled or had a record of a disability, he argued that he met the ADA definition of disability because Crown regarded him as having a substantially limiting impairment.

To establish disability in that way, an employee is required to show that his employer mistakenly believed he was substantially limited in performing a major life activity. In this case, the life activity in question was Justice's ability to work. To make his claim, he was required to show that Crown believed that he was significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes compared to the average person with comparable training, skills, and abilities.

The court concluded that a jury could find that Crown misunderstood the nature of Justice's impairment and the risks it posed and therefore believed him to be significantly restricted in his ability to perform jobs as an electrician. Crown's HR manager testified that the company's initial safety concerns arose because Justice was exposed to high voltages as an electrician. In addition, the plant's supervisor testified of his concern about Justice's unsteadiness while working on high-voltage cabinets. The court didn't believe that the medical reports indicated that he had such a limitation, however.

The court rejected Crown's argument that its willingness to consider Justice for another position at the plant showed that it didn't consider him unable to work. According to the court, Justice wasn't required to establish that his employer believed he was disqualified from every job imaginable, but simply that he was excluded from performing an entire class of jobs or a broad range of jobs. Crown's offer of a janitorial position did nothing to dispel the probability that it believed his balance problems rendered him incapable of safely performing electrical work.

The court thought there were genuine doubts about whether the physical therapist's tour of the plant accurately outlined the requirements of the electrician job because neither Justice nor a union representative accompanied her on the tour. Finally, the court believed that Crown may not have sincerely believed that the plant's machinery posed a danger to Justice because he continued to work in proximity to it as a janitor.

Direct threat? Maybe

Under the ADA, employers have a defense to discrimination claims if an employee poses a direct threat to the health or safety of himself or others. Although the burden of showing that an employee is a direct threat typically falls on the employer, the court stated that because Justice acknowledged that the electrician job at Crown's plant can be "deadly" and that "lives are at stake," it may be appropriate to assign him the burden of showing that he doesn't pose a direct threat.

Nevertheless, the court found that the question of whether Justice was a direct threat should be left up to a jury. While the risk of harm may have been permanent and the severity of injury great, the court found that a jury could still determine that the likelihood of harm was extremely small despite his medical condition. Justice v. Crown Cork and Seal Co., Inc., 527 F.3d 1080, 2008 U.S. App. LEXIS 11769 (10th Cir., June 3, 2008).

Liticaphobia

While the spinning sensation that Jimmy Stewart's character suffered in Vertigo resulted from acrophobia, or fear of heights, some employers reading this case may feel the room is starting to spin around them because of liticaphobia, the fear of lawsuits. If you're experiencing that feeling, try taking the following steps to help slow things down and regain the sense that your feet are planted firmly on solid ground.

First, be sure to provide medical experts with the information they need before their assessment of an employee's ability to perform a job safely. Taking appropriate measures to include the employee or a union representative in an assessment of what the position requires may reduce the likelihood of allegations you exaggerated the dangers of the workplace or job description to his disadvantage. And be careful not to assume more limitations than are included in the medical reports.

On the other hand, prudent employers should make sure that supervisors are aware of an employee's medical restrictions and the need to take measures to reassign him if his disability truly places him or others at risk. The last thing you want is a workplace accident that seriously injures one or more employees. However, make sure when reassigning the employee that you don't place undue limitations on jobs under consideration like the employer in this case did. While it may seem that employers with hazardous workplaces and disabled employees walk a dangerous tightrope of liability, taking careful steps to properly assess which tasks the employee can safely perform is essential. Otherwise, the room will quickly start spinning again.