Monday, March 16, 2009
Allmond v Akal Security, Inc, ___F.3d___(11th Cir. February 20, 2009), is one of those few cases where a business necessity defense was established by the employer. A ban on the use of hearing aids during hearing tests in preemployment medical examinations for security guards at federal courthouses is job-related and consistent with business necessity, the Eleventh Circuit held, rejecting claims that the hearing-aid ban unlawfully precludes certain disabled persons from being hired. Noting the burden of establishing a lawful business necessity "is generally quite high," the court explained that this burden "is significantly lowered" where the "`the economic and human risks involved in hiring an unqualified applicant are great.'" In this instance, the ban was implemented after a detailed job analysis identified several hearing-related tasks that are essential to the security officer position and determined that "all officers must pass a hearing test without the help of a hearing aid to qualify to the position to ensure that all officers can perform effectively in the event their hearing aids experience interference, become dislodged, or otherwise fail on the job." Moreover, the hearing-aid ban is job-related—sufficiently tailored to the security officer position to satisfy this element of the defense.