Columbus Civ. Serv. Comm. v. McGlone
| Decision Date | 12 August 1998 |
| Docket Number | No. 97-0980,97-0980 |
| Citation | 697 N.E.2d 204,82 Ohio St.3d 569 |
| Parties | , 8 A.D. Cases 737, 13 NDLR P 155 CITY OF COLUMBUS CIVIL SERVICE COMMISSION, Appellant, v. McGLONE et al., Appellees. |
| Court | Ohio Supreme Court |
SYLLABUS BY THE COURT
A person denied employment because of a physical impairment is not necessarily "handicapped" pursuant to former R.C. 4112.01(A)(13).
Appellee James McGlone applied for a position as a firefighter recruit with the city of Columbus on April 2, 1990. At that time, the application process consisted of a written examination and a physical capability test. Applicants who passed those tests were ranked on an eligible list based on their combined scores. Applicants on the eligible list then moved on to the next phases of the process, which included an aerial ladder climb, a background review, and a medical examination which included a vision test. Applicants who failed any portion of the application process could not be considered for appointment to the firefighter training academy.
McGlone was ranked number 156 on the eligible list after the written examination and physical capability test. He then successfully completed the ladder climb and background review portions of the process. However, McGlone failed the vision test portion of his medical examination. The city's visual acuity standard requires a firefighter applicant to have not less than 20/40 vision in both eyes without correction, acuity of not less than 20/20 in both eyes with correction, and normal color vision. McGlone's vision was 20/100 in both eyes without correction. A person with 20/100 vision can see an object from twenty feet only as well as a person with 20/20 vision can see an object at one hundred feet. Since he failed the vision portion of the medical examination, McGlone was removed from the eligible list on June 9, 1992.
On November 17, 1992, McGlone filed a charge with the Ohio Civil Rights Commission ("OCRC"), alleging that the city had discriminated against him on the basis of a handicap, his visual impairment. The OCRC investigated the charge, issued a complaint, and held a hearing. The OCRC hearing examiner found that the city had discriminated against McGlone on the basis of a perceived handicap and recommended that he be reinstated to the eligible list. The hearing examiner did not recommend any back pay. The OCRC adopted the hearing examiner's finding of discrimination, but also awarded back pay and ordered the city to offer McGlone employment as a firefighter.
The city appealed that decision to the Franklin County Common Pleas Court. The common pleas court upheld the discrimination finding, but reversed the OCRC's remedy. The OCRC appealed the remedial portion of the court's decision; the city cross-appealed on the discrimination finding. The appellate court affirmed the finding of discrimination, holding that the city perceived McGlone to be handicapped and removed him from the eligible list because of that handicap, despite the fact that he could safely and substantially perform the essential functions of a firefighter with the reasonable accommodation of being allowed to wear contact lenses while on duty.
With respect to the remedy, the appellate court reversed the trial court, holding that the remedy ordered by the OCRC was supported by reliable, probative, and substantial evidence.
The cause is now before this court upon the allowance of a discretionary appeal.
Janet E. Jackson, City Attorney, Sherrie J. Passmore, Chief Labor Attorney, and Stephanie M. Hughes, Assistant City Attorney, for appellant.
Michael G. Moore, Columbus, for appellee James McGlone.
Betty D. Montgomery, Attorney General, Duffy Jamieson and Matthew D. Miko, Assistant Attorneys General, for appellee Ohio Civil Rights Commission.
Louis A. Jacobs, Columbus; Spater, Gittes, Schulte & Kolman and Frederick M. Gittes, Columbus, urging affirmance for amicus curiae, Ohio Employment Lawyers Association.
We hold that a person denied employment because of a physical impairment is not necessarily "handicapped" pursuant to former R.C. 4112.01(A)(13).
To establish a prima facie case of handicap discrimination, the person seeking relief must demonstrate (1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at least in part, because the individual was handicapped, and (3) that the person, though handicapped, can safely and substantially perform the essential functions of the job in question. Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 281, 25 OBR 331, 333, 496 N.E.2d 478, 480. This case revolves around the first element, i.e., whether McGlone was handicapped. At the time this case arose, the predecessor to the current R.C. 4112.01(A)(13) was in effect, and it defined "handicap" as follows:
" 'Handicap' means a medically diagnosable, abnormal condition which is expected to continue for a considerable length of time, whether correctable or uncorrectable by good medical practice, which can reasonably be expected to limit the person's functional ability, including, but not limited to, seeing, hearing, thinking, ambulating, climbing, descending, lifting, grasping, sitting, rising, any related function, or any limitation due to weakness and significantly decreased endurance, so that he cannot perform his everyday routine living and working without significantly increased hardship and vulnerability to what are considered the everyday obstacles and hazards encountered by the non-handicapped." 143 Ohio Laws, Part III, 4156.
In the current version of R.C. 4112.01(A)(13), even if a person is not handicapped, he can gain the protection of handicap discrimination laws if he is "regarded [by an employer] as having a physical or mental impairment." While the "regarded as handicapped" language was not part of the statute when this case arose, the pertinent Administrative Code section in effect at the time, Ohio Adm.Code 4112-5-02(H), included in its definition of a "handicapped person" "any person who is regarded as handicapped by a respondent." We therefore find that it was appropriate for the OCRC and the reviewing courts to consider whether the city perceived McGlone as handicapped.
The question before this court then is whether a person can be foreclosed from a particular job based upon a physical impairment without at the same time being handicapped, or perceived as handicapped, under former R.C. 4112.01(A)(13), and therefore due the protections of the Ohio Civil Rights Act. We find that McGlone was neither handicapped nor perceived as handicapped by the city.
To find that McGlone was handicapped, we would have to conclude that his nearsightedness was a "medically diagnosable, abnormal condition which is expected to continue for a considerable length of time * * *...
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