By Anthony Rice
In Fey v. Community Colleges of Spokane, the court reversed a $58,000 judgment for the plaintiff Mark Fey, a grounds keeper at Spokane Community College, for the college’s failure to accommodate Fey’s disability. The court ruled that the college is not liable because they were not required to modify the essential functions of a job to accommodate Fey’s terrible vision.
The job descriptions for grounds crew—which had always identified snow and ice removal and equipment operation as “essential duties” of the position—were modified (in accordance with law) in 2007 to require Commercial Driver’s Licensing (CDL) as a condition of employment. The college agreed with the union to grandfather in those with medically disabling conditions into their position; this included Fey. Fey’s disability claim arose out of incidences that began when a grounds lead at the college left and thus created an opening for a promotional position. Fey submitted his application for the vacant position. However, Fey’s application was never considered because he could not obtain the CDL required for the position.
The court did find that the college discriminated against Fey because of his disability. However, the court also found that the college had a viable defense for that discrimination. In cases where the discriminatory qualification is a “bona fide occupational qualification” (BFOQ) the employer is not liable for the discrimination.
If a wet nurse were needed, being female would be a BFOQ. If the protagonist in a motion picture was of a particular age and ethnicity, that age and ethnicity would be BFOQ. If incapacitating medical events and adverse psychological and physical changes make it unsafe to employ some persons as airline pilots over age 60 and it is impossible or highly impractical to determine which persons present a risk, the Federal Aviation Administration (FAA) could refuse to license pilots beyond age 60.
Here, viewing the evidence in the light most favorable to Mr. Fey, there was no substantial evidence that the district did not genuinely treat the ability to drive its commercial weight trucks as an essential function of the grounds lead position at [the college].
