Refusal to Hire Impaired Worker Not Disability Bias

A refinery's refusal to hire an applicant who admitted to suffering from weakness on the right side of his body did not violate disability laws, a federal judge in Houston has ruled.

U.S. District Judge Ewing Werlein said the Equal Employment Opportunity Commission did not show that Lyondell-Citgo Refining LP regarded Steve Aleman as disabled or that it discriminated against him based on his record of disability in violation of the Americans with Disabilities Act.

"An employer may freely decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job without violating the ADA," the judge said.

According to the EEOC's complaint, Aleman applied for a job as an operator trainee at LCR and underwent physical ability and pre-placement physical testing. During the physical ability test, he disclosed that he had undergone brain surgery some years before. He passed the physical ability test, and the company made him a conditional offer of employment.

During the pre-placement physical test Aleman noted on his medical history form that he previously sustained a head injury that required hospitalization and experienced seizures and weakness in the right side of his body, the opinion says.

Based on information Aleman provided, the doctor who conducted the pre-placement physical test determined that he could not safely climb ladders, which the operator job required. LCR withdrew its employment offer based solely on the doctor's recommendation, it says.

Aleman filed a discrimination charge with the EEOC, and the agency filed suit on his behalf in the U.S. District Court for the Southern District of Texas.

The complaint alleged that LCR violated the ADA by refusing to hire Aleman because he was disabled and had a history of disability.

Judge Werlein granted the refinery's motion for summary judgment.

The judge explained that to be regarded as disabled, a plaintiff must show that he has a physical or mental impairment that does not substantially limit major life activities but is treated as disabled by the employer.

LCR said it withdrew the job offer because it believed that Aleman could not safely climb ladders, according to Judge Werlein.

However, climbing has not been deemed a "major life activity" for purposes of the ADA, he said. A major life activity is a "basic, necessary function" such as walking, seeing or breathing, the judge said.

In this case, LCR seemed to be aware that Aleman's impairment might affect activities other than climbing, Judge Werlein said.

"Awareness of an impairment, however, cannot alone prove that the employer regarded an employee as disabled," he said.

The judge dismissed the disability claim, saying the EEOC did not show that Aleman's impairment, as LCR perceived it, was substantially limiting.

The agency alleged in the alternative that Aleman is covered by the ADA because of a "record of disability."

A plaintiff has a record of disability if he has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities, Judge Werlein explained.

While the EEOC contended that Aleman's history of seizures and right-side weakness can be substantially limiting, it did not present evidence that those impairments "actually posed substantial limitations to Aleman's ability to walk, stand, balance or, indeed, to engage in any recognized major life activity," Judge Werlein said.

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The EEOC was represented by Connie Wilhite of Houston.Counsel for Lyondell-Citgo Refining are Ethel Johnson, Jennifer Miscovich and Robert Ivey of Ogletree Deakins in Houston.