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ADA Violation – Reasonable Accommodation

7th Circuit Court of Appeals

Case Name: Mark Milsna v. Union Pacific Railroad Company

Case No.: 19-2780

Officials: EASTERBROOK, HAMILTON, and BRENNAN, Circuit Judges.

Focus: ADA Violation – Reasonable Accommodation

When the Federal Railroad Administration put in place new regulations related to hearing, a train conductor—who has been hearing‐impaired since youth and has worn hearing aids for years—was caught in a bind. He passed a hearing acuity test, but only when using hearing aids without additional hearing protection.

According to the railroad, this placed him in violation of a policy which requires that protection be worn if the employee is exposed to noise above a certain level. The railroad and the conductor could not agree on an accommodation for him to use other hearing devices. The railroad would not recertify the conductor, and he lost his job.

The conductor sued arguing that the railroad discriminated against him because of his hearing disability. The district court granted summary judgment to the railroad, finding that the conductor “failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functions of the train conductor position with a reasonable accommodation.” We view the record differently. Issues of fact exist as to whether wearing hearing protection is an essential function of the plaintiff’s work as a conductor, as well as whether reasonable accommodations for the conductor were properly considered. So we reverse and remand for further proceedings.

Reversed and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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