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August 1, 2003

Court reinstates ex-Utahn's bias suit against AOL

From: Salt Lake Tribune, UT - Aug 1, 2003

By Pamela Manson
The Salt Lake Tribune

An appeals court has given the green light to a lawsuit filed by a deaf man who claims America Online discriminated against him when it refused to hire him for a customer service position in Ogden.
In a 3-0 opinion, a panel of the 10th U.S. Circuit Court of Appeals reinstated a suit by former Utah resident George M. Davidson, who claims that an AOL policy requiring its "customer care consultants" to first gain experience dealing with callers by voice phone before being switched to nonphone positions illegally discriminates against hearing-impaired individuals.
The 10th Circuit ruling takes no position on whether there was discrimination but reverses a decision throwing out Davidson's suit and sends the case back to U.S. District Court for a trial.
"AOL's requirement of voice phone experience for nonvoice phone positions may or may not be justified as job-related or a business necessity, but that is a question for a jury to answer with all the available evidence before it," the 10th Circuit opinion, which was handed down Wednesday, says.
Davidson, who now works for a medical supply company in Portland, said Thursday that the decision is a victory for himself and the deaf community. He predicts victory when his case goes to trial.
"All I wanted was to be considered just like everyone else," he said through a teletypewriter, a telecommunications device for deaf people.

However, AOL refused to even interview him when he applied for work, Davidson said.
Nicholas Graham, a spokesman at the company's Dulles, Va., headquarters, said AOL was reviewing the court decision and considering its legal options. Company representatives have denied that AOL discriminates against anyone.
The 10th Circuit's opinion says that AOL hired seven deaf people in 1996 for nonvoice phone positions handling mail and e-mail communications at its call center in Ogden.
However, in 1997, the company opened a center in the Philippines, which primarily handled nonvoice phone work.
After that, AOL adopted a policy of filling any nonvoice phone positions with internal candidates only, the opinion says.
Davidson applied for a job at AOL's call center in Ogden twice, in September 1997 and November 1998, according to the court ruling. While his first application was pending, AOL transferred about 20 employees from voice phone positions into nonvoice phone jobs. When Davidson contacted the company about the status of his application, he was told that all available positions had been filled, the ruling says.
After Davidson was rejected again in 1998, AOL told him that nonvoice phone positions had been filled by internal transfer that very week, the ruling says. He claims that the company's human resources personnel told him that these positions were limited to internal hires and that AOL would not hire him because he is deaf.
Davidson filed suit in 1999, claiming a violation of the Americans with Disabilities Act of 1990. The act prohibits discriminating against an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of a job.
AOL argued that it had a legitimate basis for requiring voice phone work, including helping workers to meet productivity demands and to gain knowledge and experience.
A district court judge dismissed the suit, ruling that Davidson had filed it too late and had failed to establish that he was qualified to perform the essential functions of the position. In addition, the lower-court ruling said it would be an unreasonable accommodation to force AOL to restructure its hiring practices.
In reversing, the 10th Circuit noted that AOL had filled nonvoice phone positions with new hires of deaf persons in the past.
"Notably, although AOL makes the broad assertion that nonvoice phone positions require AOL voice phone experience, it admits that voice phone personnel have been transferred to nonvoice phone positions with as little as two or three weeks experience," the ruling says.

© Copyright 2003, The Salt Lake Tribune.