Home Home | About Us | Sitemap | Contact  
  • Info For
  • Professionals
  • Students
  • Educators
  • Media
  • Search
    Powered By Google

Southwestern Bell Entitled to Business Necessity Defense

Emily K. Demonte and David W. Arnold, Esq.
Reid Psychological Systems

The 8th Circuit Court of Appeals found that Southwestern Bell Telephone (SWB) was entitled to a new trial in the case of Belk v. Southwestern Bell Telephone Company, No. 99-1371, 1999. The court held that SWB was entitled to a specific jury instruction on the business necessity defense under the Americans with Disabilities Act (ADA). The trial court had refused to provide this instruction because this defense was adequately covered by other jury instructions.

Ricky Belk worked as a Service Representative for SWB providing customer service over the telephone. Belk wears a full-length leg brace at all times due to residual effects of polio. In 1995 Belk applied for a Customer Service Technician (CST) position. The job description for a CST includes the abilities to climb ladders and poles, move or lift materials weighing up to 150 pounds and work while "kneeling, stooping, crawling, crawling or [maintaining] other uncomfortable positions."

SWB administers three tests to determine qualifications for the CST position: a written technical test, a manual dexterity test, and a physical performance test (PPT)the PPT is the focus of the complaint. The PPT has four components and Belk requested an accommodation for two components. SWB refused both of Belk's requested accommodations, but did modify one component of the PPT. After failing to pass one section of the PPT, Belk was denied the CST position, and Belk filed suit under the ADA alleging failure to accommodate his disability. Belk's complaint also alleged the PPT has a disparate impact on people with disabilities.

An argument offered by SWB was that Belk was not disabled under the ADA due to his ability to walk and engage in many physical activities with the use of his leg brace. SWB claimed that under Sutton v. United Airlines, 119 S.Ct.2139 (1999), the determination as to whether a person is disabled should be made with reference to mitigating measures. The court dismissed this argument by saying, "unlike the petitioners in Sutton, Belk's brace does not allow him to function the same as someone who never had polio." "It can hardly be disputed that Belk is disabled in the major life activity of walking" since the motion of his leg is limited and his gait is hampered by a pronounced limp. "Therefore he is clearly `disabled' as defined under the ADA."

SWB also argued that the denial of the requested accommodations and the failure to promote Belk to CST position were based on test results which were job-related and consistent with business necessity. The SWB case draws attention to another recent 8th Circuit opinion. See Allen v. Entergy Corp, 181 F.3d 902 (1999). In Allen, a group of African-American employees alleged that a test given to determine who would be laid off had a disparate impact on African-Americans. Summary judgment was granted to the defendants on the "basis that the selection test was properly validated as job-related in accordance with EEOC guidelines."

Similar to the evidence offered by defendant in Allen, SWB had the test developer discuss how the PPT was developed through first analyzing the job and identifying critical and essential tasks and functions of the job. The test developer's testimony claimed that the PPT's purpose was to evaluate the physical performance of applicants as well as address safety concerns. Finally, testimony was offered that the PPT was developed with the intent to comply with the requirements set forth by the ADA, the Civil Rights Act of 1991, and the Uniform Guidelines on Employee Selection Procedures.

Although SWB did not address the plaintiff's response to this evidence, it claims the district court abused its discretion by refusing to specifically instruct the jury on the business necessity defense. In remanding for a new trial, the appeals court held that "SWB was entitled to an instruction on business necessity so that the jury could appreciate the value and purpose" of the test developer's explanations. Without such a specific instruction, "it is not so apparent that the jury `clearly rejected' SWB's business necessity defense."

April 2000 Table of Contents | TIP Home | SIOP Home