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Plaintiffs cannot use a disparate impact theory unless challenging a facially neutral policy. Class action lawsuits alleging disability discrimination are uncommon, and those involving disparate impact claims are less common still.&nbsp; This is due, in part, to the fact that unlike other types of discrimination claims, a claim of disability discrimination typically raises questions about whether individual class members are even in the protected group as well as the extent of their disabilities, whether they are otherwise qualified for the positions, and many others.&nbsp; Class action disability suits involving disparate impact claims are less common still. Those claims eliminate the requirement of proving intentional discrimination, but also require that the plaintiff show that a facially neutral policy has the effect of discrimination against the protected group. &nbsp;But can a plaintiff assert both claims when challenging a policy that is not neutral? &nbsp;&nbsp;In other words, can a plaintiff take advantage of both discrimination theories when the employer has an explicit policy prohibiting the employment of certain types of individuals? &nbsp;Apparently not, and doing so may result in sanctions, as a recent case indicates. In <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2013/09/Ayers.pdf">Ayers v. Multiband Field Services, Inc., Case No. 13-10765 (E.D. Mich. Sept. 18, 2013)</a>, the defendant was in the business of installing satellite dishes.&nbsp; Because dishes are installed on rooftops, workers must climb ladders carrying their tools and the equipment to be installed.&nbsp; The employer used industrial ladders with a maximum load capacity of 300 pounds and, due to the weight of tools and equipment, limited installers to a weight of 250 pounds.. The plaintiff in Ayers alleged that he weighed over 250 pounds and that the company refused to hire him on the basis of its weight limit policy.&nbsp; His initial complaint asserted class-wide disparate treatment claims that the company&rsquo;s weight restriction violated Michigan&rsquo;s Elliot-Larsen Civil Rights Act, that state&rsquo;s counterpart to the Americans with Disabilities Act.&nbsp; Apart from the fact that the case involved claims of disability discrimination, these claims were fairly straightforward &ndash; he contended that the company&rsquo;s requirement discriminated against those over 250 pounds or, he claimed those who were disabled on account of obesity. After the defendant removed the case to federal court, however, he amended his complaint to assert claims of disparate impact discrimination.&nbsp; The opinion does not disclose the reason for doing so.&nbsp; Perhaps the plaintiffs were trying to take advantage of the lower burden of proof, or perhaps they were concerned that many people over 250 pounds aren&rsquo;t disabled at all.&nbsp; The problem with this claim was that the plaintiff was not challenging a facially neutral policy, as a disparate impact claim requires, but rather an explicit prohibition on hiring those over 250 pounds.&nbsp; The defendant, therefore, moved to dismiss the disparate impact, but not the disparate treatment claim. The district court cited a wealth of federal and state authority requiring a facially neutral policy to support a disparate impact claim.&nbsp; It also found that apart from the 250-pound weight requirement was not neutral &ndash; a fact the plaintiff, at least at times, appeared to acknowledge.&nbsp; Thus, it found that the claim should be dismissed. The court also concluded that the plaintiff&rsquo;s arguments were frivolous and justified sanctions against his counsel personally.&nbsp; Note, however, that the defendant did not move (and likely could not have moved) to dismiss the plaintiff&rsquo;s class-wide disparate treatment case under the policy, so the case will move forward on that basis. The Ayers case is interesting on many levels and, should it continue, may be one to watch for future developments.&nbsp; As to the underlying merits, it presents the issue of whether the employer can enforce the 250-pound limitation, one grounded in the unbending laws of physics (i.e. a ladder can only hold so much), as well as embedded in ANSI and OSHA standards.&nbsp; The complaint did not disclose the named plaintiff&rsquo;s weight, but even the 300-pound ladders used by the employer are towards the top of the ANSI standards (classified IA). The class-wide issues could be even trickier.&nbsp; Not everyone over 250 pounds is obese.&nbsp; Those over a certain weight may exceed the weight capacity of commercially available and practically feasible ladders.&nbsp; Similarly, the employer is likely to raise issues regarding the ability of those over a certain size to scale ladders routinely, climb around a variety of customer roof types and pitches, or perform other job-related tasks.&nbsp; All of these suggest threshold problems of commonality, typicality, and predominance.&nbsp; The case also has implications beyond disability claims as the court&rsquo;s analysis included cases under Title VII.&nbsp; Thus, it would apply to sex, race, and religious claims and, presumably, any other discrimination action in which a disparate impact claim is available. The Bottom Line:&nbsp; A plaintiff cannot challenge a job requirement that is not neutral under a disparate impact theory. &nbsp;

Michigan District Court Dismisses Disability Disparate Impact Class Claim