Baxter Healthcare Must Face Deaf Worker's Bias Claim

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By Patrick Dorrian

Aug. 24 — A deaf woman rejected for a plasma center technician job with Baxter Healthcare Corp. in Wyoming may be able to show her conditional job offer was withdrawn in violation of federal disability discrimination law, the U.S. Court of Appeals for the Tenth Circuit held Aug. 24.

The court found that Kelly Osborne raised questions for a jury under the Americans with Disabilities Act as to whether the use of call buttons in conjunction with visual and vibrating alerts would have enabled her to perform the essential function of safely monitoring the blood donor area at BioLife Plasma Services in Cheyenne, Wyo. Baxter does business in Wyoming as BioLife, the court said.

Osborne also raised a jury issue on whether she could perform the essential job function of verbal communication, Judge Scott M. Matheson added.

He said Baxter was off-base with its argument that providing Osborne with call buttons and visual and vibrating alerts wasn't reasonable because it didn't completely eliminate the health risk posed by her not noticing a donor in distress. She didn't need to show her requested accommodations “would eliminate every de minimis” risk the company “can hypothesize,” Matheson wrote.

‘Direct Threat' Defense Rejected

Instead, the court said to defeat Baxter's “direct threat” defense—that a disabled worker poses a significant risk to the health and safety of herself or others—Osborne had to “show only that her proposed accommodation is reasonable on its face” in that it would enable her to perform the essential function of donor monitoring.

The evidence showed that plasma donation historically has carried a 0.0004 percent risk of significant adverse reactions by donors, Matheson said. That “infinitesimal risk,” he wrote, “does not come anywhere close to constituting a ‘direct threat' ” under the criteria set forth in the Equal Employment Opportunity Commission's ADA regulations.

Osborne's job offer was rescinded after medical information she provided caused Baxter to determine that she couldn't safely monitor the donor area, because she couldn't hear the alarms on the plasmapheresis machines, which audibly sound when something requires attention or goes wrong. Plasmapheresis, or “Auto C,” machines remove blood from a donor, separate the plasma and return the blood's red cells to the donor, the court explained.

A lower court granted summary judgment to the company on Osborne's ADA failure-to-accommodate claim, finding that she didn't establish that she could perform the essential function of donor monitoring with or without reasonable accommodation.

Two Accommodations Better Than One

Reversing, the Tenth Circuit found triable questions on whether two of Osborne's requested accommodations—installing visual and vibrating alerts on the plasmapheresis machines and providing call buttons to donors—in tandem might permit her to fulfill all of the essential duties of a plasma center technician.

“The EEOC has said the use of appropriate emergency notification systems—like strobes or vibrating pagers—is one form of reasonable accommodation for a deaf employee, including those in health care settings,” Matheson wrote. He said Baxter didn't show that providing that accommodation to Osborne was infeasible or an undue business hardship simply because the company would have needed to contact a vendor to modify the plasmapheresis machines.

But visual and vibrating alerts alone wouldn't permit Osborne to perform the essential function of donor monitoring, the court added, because some incidents that demand a plasma center technician's attention wouldn't trigger the plasmapheresis alarms Osborne requested. Instead, providing call buttons to donors to enable them to notify Osborne when they are experiencing discomfort or distress also would be necessary, the court found.

The “limited circumstances” where Osborne might not be able to perceive adverse donor reactions and respond as quickly as a hearing person didn't show she posed a direct safety or health threat and that the use of donor call buttons was unreasonable, the court held. It noted that Osborne is a skilled lip reader and can communicate effectively with distressed donors, and said the use of call button prompts wouldn't unreasonably shift her job duties onto donors, since “call buttons are common in hospitals and other medical settings.”

The appeals court did agree with the lower court that restructuring Osborne's job so that she focused primarily on the other duties of a plasma center technician would be unreasonable. “Reweighting the time spent in different roles,” it said, still would have left her “responsible at least to some extent for the essential function of donor monitoring.”

Judges Harris L. Hartz and Jerome A. Holmes joined the opinion.

Dale A. Gaar in Denver and Kline Law Office P.C. in Cheyenne, Wyo., represented Osborne. Bradley T. Cave P.C. and Holland & Hart LLP represented Baxter.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/KELLY_OSBORNE_Plaintiff__AppellantCrossAppellee_v_BAXTER_HEALTHCA.