The Fifth Circuit Court of Appeals recently ruled against a plaintiff on his disability discrimination claim. Kemp v. Holder, No. 09-30255 (5th Cir. June 22, 2010), available at http://www.ca5.uscourts.gov/opinions/pub/09/09-30255-CV0.wpd.pdf.
The plaintiff was discharged as a security officer after he failed to pass a hearing test unaided. The plaintiff had worn hearing aids for years and, while he had no problems hearing while wearing his aids, he could not pass the hearing test unaided. The district court granted summary judgment for the employer because it found the plaintiff was not disabled.
To establish a disability under the Americans with Disabilities Act, a plaintiff may show he has a physical impairment that substantially limits a major life activity. On appeal, the plaintiff argued that the district court should not have taken into account the benefit of his hearing aids when it determined he was not limited in a major life activity because the ADA was amended in 2008 to permit a disability to be discerned without regard to the mitigating effect of devices. The Court noted that, while the plaintiff’s claim might fare differently under the amended statute, his lawsuit was filed before the amendments were in effect. Therefore, because the plaintiff admitted that he was not substantially limited in any life activity while wearing his hearing aids, the district court did not err in concluding that he was not disabled.
To speak to an employment disability attorney regarding disability discrimination, contact the employment lawyers at Clouse Dunn Khoshbin LLP at [email protected].
