DATE: July 27, 1993
CASE NO. 84-OFC-17
IN THE MATTER OF
OFFICE OF THE FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
PLAINTIFF,
v.
YELLOW FREIGHT SYSTEM, INC.,
DEFENDANT.
BEFORE: THE ACTING ASSISTANT SECRETARY
FOR EMPLOYMENT STANDARDS [1]
FINAL DECISION AND ORDER OF REMAND
BACKGROUND
This proceeding arises under Section 503 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 793 (1988), and implementing regulations at 41
C.F.R. Part 60-741 (1992).
On March 12, 1984, the Department of Labor's Office of
Federal Contract Compliance Programs (OFCCP) filed an
administrative complaint against Yellow Freight System, Inc.
(Yellow Freight), which alleged (1) that Yellow Freight had
failed to take affirmative action in the employment and
advancement of Ralph E. Quick, a qualified handicapped
individual, by terminating his employment as a casual (non-
permanent) mechanic at its Charlotte, North Carolina terminal and
by failing to hire him as a permanent mechanic at that terminal
by reason of his back condition in violation of 41 C.F.R. §
60-741.6(a); (2) that Yellow Freight applied physical job
qualifications which tended to screen out Mr. Quick and other
[PAGE 2]
qualified handicapped individuals, and were not job-related and
consistent with business necessity and the safe performance of
the job, in violation of 41 C.F.R. § 60-741.6(c); (3) that
Yellow Freight failed and refused to make or attempt to make a
reasonable accommodation to Mr. Quick's physical limitations, in
contravention of 41 C.F.R. § 60-741.6(d). A hearing was
held on April 23-24, 1986 before an Administrative Law Judge
(ALJ) in Charlotte, North Carolina, and on November 6, 1986, the
ALJ issued his Recommended Decision and Order (R.D. & O.) in
favor of Yellow Freight.
The ALJ first held that Mr. Quick was a handicapped
individual because the degenerative changes above and below his
1954 spinal fusion surgery substantially limited his employment
opportunities but that he was capable of performing his duties on
the date of his rejection by Yellow Freight.
The record in the instant case similarly reveals that
Defendant refused to hire Mr. Quick as a mechanic,
based on Dr. Glaser's recommendation. Dr. Glaser was
the orthopedic surgeon who recommended that Mr. Quick
not be retained primarily on the basis of his back x-
rays, which had been sent to him for review. (T. 38-
39, 61-62, 78, 229-230) If all other employers of
mechanics in the Charlotte area or the State of North
Carolina had also performed thorough pre-employment
physicals to screen out individuals with significant
back conditions, Mr. Quick would most likely have been
disqualified from all mechanics' jobs requiring heavy
lifting in a bent position or repetitive bending and
turning. Considering that many mechanics' jobs require
this type of physical movement and that Defendant's
requirement that its mechanics have no significant back
abnormalities could be universally applied by all
employers of mechanics, unlike certain more location
specific criteria, I find that Mr. Quick is a
handicapped individual within the meaning of the Act.
29 U.S.C. § 706(7)(B).
* * * *
In contrast [with the factual situation in Forrisi
v. Bowen, 794 F.2d 931 (4th Cir. 1986)], the
evidence of record shows that Defendant's refusal to
hire Mr. Quick, Defendant's contrary
arguments in its brief notwithstanding, was not
specifically based upon Mr. Quick's inability
to perform a particular job at a particular location,
but rather on Defendant's perception that Mr. Quick was
incapable of performing
[PAGE 3]
strenuous bending, turning and forward bent lifting activities
which are not unique to Defendant's business, but are generally
an integral part of a mechanic's job. (Def. Brief at 8-9; T. 38-
39, 61-62, 78, 229-230). And, regardless of what Defendant's
perceptions were at the time it rejected Mr. Quick, other
employers must also be assumed to utilize Defendant's universally
generalizable policy of screening out individuals with back
problems affected by such physical activity.
Accordingly, Defendant's refusal to hire Mr. Quick
because of his back impairment substantially limits his
employability, thus compelling the conclusions that he
is handicapped within the meaning of the Act.
R.D. & O. at 19-20 (footnote omitted).
The ALJ then determined that Mr. Quick was a qualified
handicapped individual under the Act.
Defendant contends that because of his back condition,
Mr. Quick is not a qualified handicapped individual
because he should not be performing the types of duties
performed by a Yellow Freight mechanic. (Def. Brief
at 17). However, the only relevant inquiry in
determining whether a job applicant is a qualified
handicapped individual is whether he was capable of
doing the job at the time of his rejection. E.E.
Black, LTD. v. Marshall, 497 F. Supp. 1088, 1103
(D. Haw. 1980)]. . . .
At the time of his rejection, Mr. Quick had worked for
Defendant as a casual mechanic for approximately two
months. During this period, Mr. Quick worked
exclusively in the check lane. His work was
satisfactory and he did not complain or request light
duty.
Prior to his employment with Defendant, Mr. Quick
had worked as a mechanic for many years. Some of
Mr. Quick's former co-workers testified that he was an
above average mechanic and that they had not observed
any physical problems which interfered with his job
performance.
* * * *
While Dr. Glaser testified that there is some
radiological evidence which indicates that Mr. Quick
could not perform the job duties of a Yellow Freight
[PAGE 4]
mechanic, I find that his testimony is outweighed by the evidence
of Mr. Quick's present and past work as a mechanic. (T.72).
* * * *
In light of the evidence which demonstrates that
Mr. Quick was capable of performing the duties of a
mechanic in Defendant's Charlotte shop at the time he
was rejected for employment, I find that Mr. Quick is a
qualified handicapped individual within the meaning of
the Act. 41 C.F.R. § 60-741.2.
R.D. & O. at 19-21 (footnote omitted).
Although the ALJ found Mr. Quick qualified to perform the
job at the time of discharge, the ALJ held that Yellow Freight's
action was nevertheless lawful since continued employment of
Mr. Quick posed a reasonable probability of substantial harm,
citing Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir.
1985).
While it is not completely certain that Mr. Quick will
sustain a back injury, I am convinced by Dr. Glaser's
testimony that Mr. Quick, because of his back
condition, will probably seriously harm his back if he
continues to engage in heavy lifting in a bent forward
position or performs repetitive bending and turning.
The record indicates that these types of physical
motions are an unavoidable part of a mechanic's job.
Accordingly, I find that Defendant's policy of having
an orthopedic expert review the medical and x-ray
reports of applicants with significant back conditions
in order to screen out individuals whose back
conditions are such that they are reasonably likely to
suffer substantial injury by engaging in physical
activity which is an integral part of the job for which
they are applying, is job related and consistent with
business necessity and safe performance of the job. 41
C.F.R. § 60-741.6(C). However, before it can be
concluded that Defendant was justified in not hiring
Mr. Quick on the grounds that he cannot perform the
essential duties of a Yellow Freight journeyman
mechanic without endangering his own health and safety
and that of his co-workers, it must be determined
whether Defendant could have made a reasonable
accommodation to Mr. Quick's physical limitations.
R.D. & O. at 23-24 (footnote omitted). On that issue, the ALJ
[PAGE 5]
held that Yellow Freight could not have made a reasonable
accommodation to Mr. Quick under 41 C.F.R. § 60-741.6(d)
since (1) it would be "virtually impossible" to continually
assign a mechanic job duties which did not require repetitive
lifting, flexion and rotation; (2) timely repairs preclude
retention of mechanics to less demanding duties; and (3)
personnel problems would result from such less strenuous
assignments. R.D. & O.
at 24.
DISCUSSION
Yellow Freight excepts [2] to the ALJ's holding that
Mr. Quick was a "handicapped individual" subject to coverage and
protection under Section 503, R.D. & O. at 17-20, because the
degenerative changes and spurring above and below his 1954-55
spinal fusion operations (arising from his 1954 automobile
accident while on active duty in the Army) did not constitute a
substantial limitation to his employment for purposes of defining
a handicapped individual under the statute. Yellow Freight
argues that his back condition had not affected his ability to
secure mechanics' positions elsewhere, but rather "the
combination of [his] . . . particular condition and the specific
and very demanding job characteristics of the mechanic's job at
YFS which disqualify . . . [him]. . . ." Yellow Freight brief
at 2.
The record amply demonstrates, and YFS knew, that
Mr. Quick had many prior jobs as a mechanic. For the
most part, these other jobs appear to have been as an
automobile rather than truck mechanic. The nature and
pace of the work involved, and the types of equipment
involved are simply not comparable to that involved at
YFS. YFS does not regard Mr. Quick as incapable of
performing as a mechanic in any situation, it
regards him as incapable of performing as a mechanic as
that job is structured and operated at YFS.
Yellow Freight brief at 4 (emphasis in original). In sum, it
argues that Mr. Quick's condition is not a substantial limitation
to his employment in the general job category of mechanic
elsewhere, but rather that his condition made him unqualified for
the particular trucking mechanic position at Yellow Freight,
citing Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986)
that "[f]ar from being regarded as having a 'substantial
limitation' in employability [plaintiff] was seen as unsuited for
one position in one plant - and nothing more."
Yellow Freight is correct that an individual's inability
[PAGE 6]
to perform a particular job for a particular employer is not
sufficient to establish the existence of a handicap under the
Act; his impairment must substantially limit his employment
generally. Byrne v. Board of Education, School of West Allis
- West Milwaukee, 979 F.2d 560, 565 (7th Cir. 1992) and cases
cited; Taylor v. U.S. Postal Service, 946 F.2d 1214, 1217-
18
(6th Cir. 1991) (individual with degenerative back condition
deemed handicapped under the Act, with citations to related "back
cases"); Daley v. Koch, 892 F.2d 212, 214-16 (2nd Cir.
1989); Wright v. Tisch, 45 FEP Cases 151, 153 (E.D. Va.
1987); OFCCP v. Cissell Manufacturing Co., Case No. 87-
OFC-26, Assistant Secretary for Employment Standards' Decision
and Order of Remand, Dec. 5, 1989, slip op. at 9-10; seeFuqua v. UNISYS Corp., 716 F. Supp. 1201, 1205-07 (D.
Minn. 1989).
Yellow Freight argues that the ALJ erroneously universalized
(term used by ALJ, infra) Mr. Quick's condition and
ability to perform by extension to all mechanics' jobs in order
to find that he was a handicapped individual under the
definitional framework of the Act.
There are quite obviously differing types of mechanic
jobs and the type and frequency of physical activity
associated with each varies widely. . . . The very
highest levels of technical ability and versatility
are required [at Yellow Freight]. The pace of work and
the productivity required are extremely demanding.
These factors combine with the bending, twisting and
lifting normally associated with a mechanic's job to
create a unique class of mechanics. To treat a Class A
journeyman mechanic at YFS or one of its competitors in
the over-the-road trucking industry as functionally
interchangeable with the mechanic at the corner gas
station is both practically and analytically
unjustifiable.
Yellow Freight brief at 3. The ALJ had determined that
Mr. Quick's condition was a substantial barrier to his employment
as a mechanic generally, including positions outside the trucking
industry but containing related requirements.
The record in the instant case similarly reveals that
Defendant refused to hire Mr. Quick as a mechanic,
based on Dr. Glaser's recommendation. (T. 38-39, 61-
62, 78, 229-230). If all other employers of mechanics
in the Charlotte area or the State of North Carolina
had also performed thorough pre-employment physicals to
screen out individuals with significant back
conditions, Mr. Quick would most likely have been
[PAGE 7]
disqualified from all mechanics' jobs requiring heavy lifting in
a bent position or repetitive bending and turning. Considering
that many mechanics' jobs require this type of physical movement
and that Defendant's requirement that its mechanics have no
significant back abnormalities could be universally
applied by all employers of mechanics, unlike certain more
location specific criteria, I find that Mr. Quick is a
handicapped individual within the meaning of the Act. 29 U.S.C.
§ 706(7)(B).
* * * *
Defendant's refusal to hire Mr. Quick, however, cannot
be treated as a[n]. . . isolated mismatch of employer
and employee.
In contrast, the evidence of record shows that
Defendant's refusal to hire Mr. Quick, Defendant's
contrary arguments in its brief notwithstanding, was
not specifically based upon Mr. Quick's inability to
perform a particular job at a particular location, but
rather on Defendant's perception that Mr. Quick was
incapable of performing strenuous bending, turning and
forward bent lifting activities which are not unique to
Defendant's business, but are generally an integral
part of a mechanic's job. (Def. Brief at 8-9; T. 38-
39, 61-62, 78, 229-230). And, regardless of what
Defendant's perceptions were at the time it rejected
Mr. Quick, other employers must also be assumed to
utilize Defendant's universally generalizable
policy of screening out individuals with back problems
affected by such physical activity.
Accordingly, Defendant's refusal to hire Mr. Quick
because of his back impairment substantially limits his
employability, thus compelling the conclusions that he
is handicapped within the meaning of the Act.
R.D. & O. at 19-20 (emphasis added) (footnote omitted).
The ALJ was correct in placing the truck mechanics' position
within the broader category or framework of mechanics' jobs in
general since they were similar and therefor reflected his closed
employment universe, i.e., the broad base from which his
potential employment would most likely have arisen, absent his
disqualification, in view of his training, skills, and past job
history. Several factors are relevant to determining whether an
impairment substantially limits an individual's employment
potential. They include "[1] the number and type of jobs from
[PAGE 8]
which the impaired individual is disqualified, [2] the
geographical area to which the individual has reasonable access,
and [3] the individual's job expectations and training."
Welsh v. City of Tulsa, Oklahoma, 977 F.2d 1415, 1419
(10th Cir. 1992) (quoting with approval Jasany v. U.S. Postal
Service, 755 F.2d 1244, 1249 (6th Cir. 1985)). Thus, in
determining whether a substantial limitation to employment exists
for an impaired individual, consideration of the individual's
closed employment universe is not limited to a single, identical
job existing among various employers in the same industry,
e.g., trucking company mechanics. Byrne v. Board of
Education, School of West-Allis-West Milwaukee, 979 F.2d at
565-66; Welsh v. City of Tulsa, Oklahoma, 977 F.2d at
1419; Forrisi v. Bowen, 794 F.2d at 934; Jasany v. U.S.
Postal Service, 755 F.2d at 1244, 1250 (6th Cir. 1985);
Coley v. Secretary of the Army, 689 F. Supp. 519, 520-21
(D.Md. 1987); E.E. Black, Ltd. v. Marshall, 497 F.Supp.
1088, 1100-01 (D. Haw. 1980); OFCCP v. Cissell Manufacturing
Co., slip op. at 9.
The ALJ's methodology and conclusions regarding the extent
of Mr. Quick's reduced employment opportunities are consistent
with the E.E. Black decision, supra. There, the
United States district court stated:
Factors that are important in the case-by-
case determination are the number and types
of jobs from which the impaired individual is
disqualified. And the focus cannot be on
simply the job criteria or qualifications
used by the individual employer; those
criteria or qualifications must be assumed to
be in use generally. . . . In evaluating
whether there is a substantial handicap to
employment, it must be assumed that all
employers offering the same job or similar
jobs would use the same requirement or
screening process.
E.E. Black, Ltd. v. Marshall, 497 F.Supp. at 1100. The
ALJ followed the court's methodology in finding that Mr. Quick
was a handicapped individual. R.D. & O. at 18. Further, his
approach reflected pertinent judicial notice concepts. 41 C.F.R.
§ 60-30.15(k) (1992) and 29 C.F.R. § 18.45 (1992);
see 41 C.F.R. § 60-741.29(b) (1992). Yellow Freight
has provided no meaningful information, data or related material
to demonstrate that the ALJ's factual views were incorrect.
OFCCP excepts to the ALJ's holding that
[PAGE 9]
it is clear from Dr. Glaser's testimony that
degenerative changes around a spinal fusion which are
revealed by x-ray constitute a condition of such an
apparent nature that a valid determination of
whether employment of such individual poses a
reasonable probability of substantial harm can be made
solely on the basis of medical criteria, without also
considering the individual's work history and
comprehensive medical history.
R.D. & O. at 23,n.8 (emphasis added). As indicated supra,
Dr. Glaser's recommendation that Mr. Quick not be retained was
based primarily on the doctor's review of Mr. Quick's x-rays,
which had been sent to him, along with some cursory medical
information, as part of Yellow Freight's application process.
The doctor's justification, as offered at the hearing, was that
retention of Mr. Quick would pose a reasonable probability of
substantial harm to himself and others. Hearing Transcript (T.)
at 72, 80. The ALJ found support for his decision that back x-
rays need not be supplemented by an individual consideration of
an employee's work history and comprehensive medical history to
make such a determination, as provided in Mantolete v.
Bolger, 767 F.2d 1416, (9th Cir. 1985).
We agree with the court in Black and with the
court below to the extent it holds that, in some cases,
a job requirement that screens out qualified
handicapped individuals on the basis of possible
future injury is necessary. However, we hold that
in order to exclude such individuals, there must be
a showing of a reasonable probability of substantial
harm. Such a determination cannot be based merely
on an employer's subjective evaluation or, except in
cases of a most apparent nature, merely on medical
reports. The question is whether, in light of the
individual's work history and medical history,
employment of that individual would pose a reasonable
probability of substantial harm.
Such an evaluation necessarily requires the gathering
of substantial information by the employer. This, we
believe, was Congress' intent in enacting the
Rehabilitation Act of 1973; that is, to prevent
employers from refusing to give much needed
opportunities to handicapped individuals on the basis
of misinformed stereotypes.
* * * *
[PAGE 10]
In applying this standard, an employer must gather
all relevant information regarding the applicant's work
history and medical history, and independently assess
both the probability and severity of potential
injury. This involves, of course, a case-by-case
analysis of the applicant and the particular job.
Id. at 1422-23 (emphasis added). However, the ALJ's
reliance on this case is misplaced.
I interpret the Mantolete court's reference to "cases
of a most apparent nature" to refer to situations that are very
clear, evident and obvious, and not subject to serious dispute.
Whether Mr. Quick's employment posed a reasonable probability of
substantial harm as determined by his x-rays is not such a case,
particularly since Dr. Glaser provided no concrete data or other
information to fully justify his position. [3] He had never
examined Mr. Quick or seen him work. T. at 49, 67. He did not
offer any statistical evidence showing the degree to which the
risk of injury increased because of Mr. Quick's degenerative
changes, nor did he have an opinion as to when these changes
would begin or the rate at which they would or might take place.
T. at 69-71, 73. He never considered that Mr. Quick was
presently working and had worked for the previous twenty years as
a mechanic. T. at 50. He did not know when Mr. Quick last had a
back pain. T. at 50. No mobility or agility tests were
performed and Mr. Quick's medical records from his personal
physician were never requested. T. at 49. He did not know
whether Mr. Quick was in pain, nor had he called Mr. Quick's
foreman at Yellow Freight to ask whether Mr. Quick showed any
signs of a back problem while working. T. at 49-50. Moreover,
Dr. Glaser was familiar with the duties of Yellow Freight
mechanics "just in general" and did not know the amount of weight
lifted by Yellow Freight mechanics, the extent of twisting or
turning performed in their respective jobs, and the amount of
time spent on their feet; he was not fully familiar with their
various activities. T. at 79-81. There was no explanation why
Mr. Quick could not have been retained, subject to periodic
monitoring of his medical conditions under the Mantolete
standards, supra.
Thus, Yellow Freight's decision to terminate Mr. Quick was
fundamentally flawed [4] because it failed to "gather all
relevant information" and "assess both the probability and
severity of potential injury" in a meaningful and comprehensive
manner. Mantolete at 767 F.2d at 1423. SeeKling v. County of Los Angeles, 769 F.2d 532, 534 (9th
Cir. 1985). Yellow Freight's reliance on the use of back x-rays
was invalid both as a part of its general employment process and
as applied to Mr. Quick in
[PAGE 11]
particular.
As indicated above, the ALJ found Mr. Quick qualified to
perform the job at the time of his discharge. The ALJ
specifically stated:
At the time of his rejection, Mr. Quick had worked
for Defendant as a casual mechanic for approximately
two months. During this period, Mr. Quick worked
exclusively in the check lane. His work was satisfactory and he did not complain or request light
duty.
Prior to his employment with Defendant, Mr. Quick
had worked as a mechanic for many years. Some of
Mr. Quick's former co-workers testified that he was an
above average mechanic and that they had not observed
any physical problems which interfered with his job
performance.
Since being rejected for employment by Defendant,
Mr. Quick worked for a school district, servicing
school buses, and currently works for Adams
International Trucking. Mr. Rasbach, Mr. Quick's
supervisor at Adams International Trucking, testified
that Mr. Quick's work is above average and that he
has not observed that Mr. Quick has any physical
limitations. Mr. Rasbach stated that Mr. Quick does
electrical work, relines brakes, pulls transmissions on
18-wheelers, pulls differentials and changes clutches
and tires. These job duties are apparently the same as
many of the job duties performed by mechanics in
Defendant's Charlotte shop.
While it appears that working the check lane is a
physically easier job than some of the other work
performed by mechanics, the fact that Mr. Quick did not
perform other more arduous jobs, such as pulling diesel
engine heads or transmissions, while employed by
Defendant, does not establish that he could not have
done the work. While Dr. Glaser testified that there
is some radiological evidence which indicates that
Mr. Quick could not perform the job duties of a
Yellow Freight mechanic, I find that his testimony is
outweighed by the evidence of Mr. Quick's present and
past work as a mechanic. (T.72).
Dr. Glaser also indicated that he did not feel
[PAGE 12]
that Mr. Quick met the DOT physical qualifications pertaining to
drivers of commercial motor vehicles. Dr. Glaser later
testified, however, that his concern was with the prolonged whole
body vibration which occurs during over the road driving, a type
of work which is not at issue here. (T.39c) The record reflects
that Mr. Quick passed a required driving test and thus was
evidently capable of road testing trucks. In any case, if it
were felt that Mr. Quick should not drive trucks on public roads,
this limitation could probably be accommodated.
In light of the evidence which demonstrates that
Mr. Quick was capable of performing the duties of a
mechanic in Defendant's Charlotte shop at the time he
was rejected for employment, I find that Mr. Quick is a
qualified handicapped individual within the meaning of
the Act. 41 C.F.R. § 60-741.2.
R.D. & O. at 20-21 (footnote omitted). I agree with the ALJ's
factual findings, supra, that Mr. Quick was a qualified
handicapped individual. See also OFCCP brief at 18, 20,
24. As such, his discharge could only be justified if it was
predicated upon a valid screening process for determining
possible future injury consistent with the exclusionary standard
enunciated in Mantolete, supra. However, the
process used here was invalid. As a legal nullity, it cannot be
used to justify his termination. Accordingly, since Mr. Quick
was a discriminatee, remedies and remedial issues must now be
considered. In order that such matters can be fully and clearly
addressed, I am remanding this case to the ALJ.
ORDER
This case is REMANDED to the ALJ for a further hearing on
remedies regarding Mr. Quick, followed by his recommended
decision and order thereon (with the recommended decision and
the remainder of the record to be submitted to the Assistant
Secretary for the issuance of a final decision and order).
Further, Yellow Freight is now ORDERED to develop and
implement policies and procedures regarding back conditions,
including the use of x-ray examinations therein, consistent
with Section 503, the implementing regulations, and this Final
Decision Order of Remand within ninety days.
SO ORDERED.
____________________________
Acting Assistant Secretary
[PAGE 13]
for Employment Standards
Washington, D.C.
OAA:SFEIGIN:kg:05/15/95
Room S-4309:FPB:219-4728
[ENDNOTES]
[1] On November 19, 1991, the former Assistant Secretary for
Employment Standards recused herself from any action in this case
and delegated decisional authority to her Special Assistant. In
view of the change of Administrations, I have been granted
decisional authority for this proceeding pending confirmation of
a new Assistant Secretary.
[2] OFCCP requests that I strike Yellow Freight's exceptions as
untimely filed and, if denied, that it be allowed to respond to
Yellow Freight's exceptions. Although Yellow Freight did not
adhere to the briefing schedule, it would appear that the date of
its filing resulted from its bonafide inquiry to
the Office of Administrative Appeals, which provided Yellow
Freight a rational basis for its filing beyond the date specified
in the briefing schedule. Further, procedural matters can be
relaxed, modified or waived in the interest of justice.
Billings v. Tennessee Valley Authority, Case No. 91-ERA-
12, Secretary's Order of Remand, Apr. 9, 1992, slip op. at 4n.2
and cases cited. The interests of justice are served by my
acceptance of Yellow Freight's brief because: (1) OFCCP has not
demonstrated that it has or will be prejudiced thereby (to the
contrary, my holdings, infra, favor OFCCP's positions);
(2) Yellow Freight acted in
good faith; (3) acceptance of its exceptions allows fuller
consideration of relevant issues in this case.
[3] Although Dr. Glaser responded affirmatively to questions
presented by Yellow Freight's counsel as to whether there was a
reasonable probability of substantial harm to Mr. Quick if he
performed the work, T. at 39(a), 72, the doctor might have used
the lesser "elevated risk" test rejected in Mantolete, 767
F.2d at 1422, 1424. He stated that individuals with these types
of back x-rays are "at risk" with respect to pain and sudden
incapacitation, T. at 39; that a person who has some degenerative
changes above and below a back fusion is at "a higher risk" of
having a repeated back injury than an individual who has never
had a spinal fusion and has no degenerative changes, T. at 39(a);
and that a person with a spinal fusion was "at a higher risk" of
developing a herniated disc, T. at 77.
[4] Yellow Freight defends its simplistic medical process by
reference to "the practical limitations of medical science."
Yellow Freight brief at 7. However, such asserted limitations do
not justify the lack of further medical-related investigation and
assessment, but, to the contrary, indicate that additional
efforts were warranted and required to resolve relevant
ambiguities and unanswered questions.
