Allen v. Southeastern Michigan Transp. Authority (SEMTA)

• Decision Date: 04 May 1984
• Docket Number: Docket No. 69073
• Citation: 349 N.W.2d 204,132 Mich.App. 533
• Parties: , 47 Fair Empl.Prac.Cas. (BNA) 1268 Donald ALLEN, Plaintiff-Appellant, v. SOUTHEASTERN MICHIGAN TRANSPORTATION AUTHORITY (SEMTA), Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 204

349 N.W.2d 204

132 Mich.App. 533, 47 Fair Empl.Prac.Cas. (BNA) 1268

Donald ALLEN, Plaintiff-Appellant, v. SOUTHEASTERN MICHIGAN TRANSPORTATION AUTHORITY (SEMTA) Defendant-Appellee.

Docket No. 69073.

Court of Appeals of Michigan.

Submitted Dec. 8, 1983.

Decided March 5, 1984.

Released for Publication May 4, 1984.

Buchanan & Buchanan by Thomas J. Azoni, West Bloomfield, for plaintiff-appellant.

Robinson, Smith and Stanfield, P.C. by Thomas A. Smith, Detroit, for defendant-appellee.

Before T.M. BURNS, P.J., and MacKENZIE and ROBINSON, ^* JJ.

ROBINSON, Judge.

Plaintiff was 46 years old when, on October 12, 1976, he submitted an application for employment with defendant as a bus driver for defendant's public transportation system, which serves southeastern Michigan. On April 21, 1977, plaintiff was given a pre-employment physical examination by Dr. Saul Margules, a physician selected by defendant. The examination was conducted in conformity with the Federal Motor Carrier Safety Regulations, 49 CFR 391.41-391.49, as adopted by the Federal Highway Administration. Defendant's policy was to follow these standards in its pre-employment physical examination of prospective bus drivers. Based on the examination, Dr. Margules determined that plaintiff suffered from high blood pressure, with a reading of 160/100, and from an arthritic back condition, diagnosed as marked hypertrophic arthritic lipping. As a result of these findings, Dr. Margules refused to certify plaintiff for the employment he sought.

On the day he failed the physical examination, plaintiff went to his private physician, Dr. Luis Nino, for an examination and treatment of the conditions found by Dr. Margules. On May 27, 1977, in a letter which plaintiff transmitted to defendant, Dr. Nino reported that, with medication, plaintiff's blood pressure was then within normal limits, and the doctor opined that plaintiff's moderate arthritis would not endanger the public safety by his driving a bus.

On June 16, 1977, plaintiff returned to Dr. Margules, of his own volition, and requested that he be given the Bureau of Motor Carrier Safety physical "identical to the one that S.E.M.T.A. employees took". Dr. Margules, without recognizing plaintiff from his previous visit and without viewing an x-ray of his back, certified him as physically fit for employment as a bus driver.

Plaintiff had driven buses for the Detroit Streets and Railways from 1968 to 1970, and for the Detroit Board of Education from 1975 to 1979, both jobs requiring the passing of a physical examination similar to that administered by defendant. Plaintiff was employed as a commercial truck driver from 1979 to the date of the trial. During these employments, he experienced no driving problems associated with either blood pressure or arthritis.

Although defendant was made aware of the results of Dr. Nino's examination, of Dr. Margules's second examination, and plaintiff's driving history, it refused to reconsider its refusal to employ him.

Had plaintiff's problem involved only his blood pressure, it seems clear that this matter would have been resolved short of litigation, since defendant acknowledged that its practice was to hire examinees with high blood pressure who were able to bring it within normal limits through treatment and to process them through the next training class following their successful exam. The trial judge, therefore, correctly centered his attention on the arthritis problem. He applied the federal standard in common-carrier cases and found that there was a rational basis in fact for defendant's refusal to hire plaintiff.

Plaintiff's challenge of the trial court's decision raises two issues.

I

DID THE TRIAL COURT APPLY THE CORRECT STANDARD IN DECIDING CLAIMS UNDER THE MICHIGAN HANDICAPPERS' CIVIL RIGHTS ACT (M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq.)?

Those portions of the statute which are pertinent to this inquiry state:

"(b) 'Handicap' means a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury "(i) For purposes of article 2, is unrelated to the individual's ability to perform the duties of a particular job or position * * *." M.C.L. Sec. 37.1103; M.S.A. Sec. 3.550(103).

congenital condition of birth, or functional disorder, which characteristic:

"(1) An employer shall not:

"(a) Fail or refuse to hire * * * an individual because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job or position." M.C.L. Sec. 37.1202; M.S.A. Sec. 3.550(202).

Plaintiff correctly argues that such a statute, being remedial in nature, is to be construed liberally rather than literally. 90 ALR3d 393, pp. 393-394.

We also think that plaintiff has correctly assessed the legislative intent in enacting the Handicappers' Act as mandating the employment of the handicapped to the fullest extent reasonably possible. See comments of Senator Faust, 1976 Senate Journal, p. 590.

The appellate courts in Michigan have not heretofore had occasion to address the question of what criteria under the act justify a refusal to employ, and the act offers us no guidance other than the requirement that refusal to employ is justified if the individual's defect is related to his ability to perform the duties of the job which he seeks. This does not tell us what standard of proof is necessary to establish the relationship.

We are not without guidance from other sources, however, and, without exception, when courts have had occasion to consider the standard necessary to justify a refusal to employ, they have established a different (and less onerous) standard for common-carrier employers than for other employers when the safety of others is at stake.

The rationale for imposing a more lenient standard upon common carriers than on other employers has been found by the courts in the higher standards of care which the law imposes on common carriers:

"Motor bus carriers, along with all common carriers, are charged both under considerations of public policy and by the operation of law with exercising an extraordinarily high standard of care for the safety of their passengers." Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 231 (CA 5, 1976).

THE FEDERAL CASES

Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (CA 7, 1974), and Usery v. Tamiami Trail Tours, Inc., supra, examined the question of the appropriate standard within the context of the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 et seq. Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (CA 5, 1971), examined the question as it arose under the sex discrimination ban of the federal Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a)(1), (e).

Both of these statutes contain an exception to otherwise discriminatory conduct by an employer "for bona fide occupational qualifications (BFOQ) reasonably necessary to normal operation of the particular business", and much of the discussion in those cases dealt with whether the employer's exclusion of the respective plaintiff from employment because of age (or sex) was a BFOQ reasonably necessary to the normal operation of the employer's business. While this exception is not found in the state anti-discrimination statutes, there is language in these federal opinions which, as we shall see, has been adopted in the state cases. After emphasizing the fact that safe transportation of its passengers is the primary function of a common carrier, and that, therefore, the court's concern goes beyond the welfare of the job applicant, the courts held that in order to earn the benefit of the exception, the employer had to prove that its discriminatory standard had "a factual basis" or, as further refined, "a rational basis in fact".

" * * * Greyhound must demonstrate that it has a rational basis in fact to believe that elimination of its maximum hiring age will increase the likelihood of Usery v. Tamiami Trails, Inc., supra, emphasized with the following language the leeway granted to common-carriers over other employers:

                risk of harm to its passengers."   Hodgson v. Greyhound, supra, p. 863
                

"The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving." Usery, supra, p. 236.

THE STATE CASES

In Boynton Cab Co. v. Dep't of Industry, Labor & Human Relations, 96 Wis.2d 396, 291 N.W.2d 850 (1980), Eli Godfried was denied employment with plaintiff cab company because he had only one hand, the cab company relying on the Federal Motor Carrier Safety Regulations as justification for its hiring policy:

"(b) a person is physically qualified to drive a motor vehicle if he--

"(1) Has no loss of a foot, a leg, a hand or an arm * * *." FMCSR Sec. 391.41.

When Godfried complained of discrimination under Wisconsin's handicap statute, Ch. 275, Sec. 18, Laws of 1975, which states:

"111.32(5)(f) It is discrimination because of handicap:

"(1) For an employer * * * to refuse to hire * * * any individual * * * unless such handicap is reasonably related to the individual's ability adequately to undertake the job-related responsibilities of that individual's employment,"

the cab company defended under the following provision of the statute:

"111.32(5)(f). The prohibition against discrimination because of handicap does not apply to failure of an employer to employ * * * any person who because of a handicap is physically or otherwise unable to efficiently perform, at the standards set by the employer, the duties required in that job * * *."

The Wisconsin Supreme Court held that the trial court and the Court of Appeals erred in imposing upon Boynton the burden of proving to a reasonable probability that its rule against employing one-handed drivers was necessary in light of its acknowledged...