Metropolitan News-Enterprise


Thursday, December 16, 2010


Page 3


C.A. Declines to Revive Discrimination Suit Against Los Angeles City


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal yesterday declined to revive a discrimination suit against the city of Los Angeles for disqualifying a colorblind man from employment as a firefighter.

Div. One ruled in an unpublished decision that Cory James failed to prove he was qualified for the job, a necessary prerequisite to establishing a Fair Employment and Housing Act violation, where he undisputedly failed three separate city-administered color vision proficiency tests.

The city had offered James employment as a firefighter after he passed the written and oral exams for employment, contingent on his passing a medical examination. The examination involved three successive tests for color vision—the “Titmus Six-Plate Ishihara Test,” the “Expanded Ishihara Test,” and the PC40 “Color Naming” Test—and the city’s civil service rules provided that a candidate for a firefighter position may be disqualified for “[d]eficiency in color perception of such a nature as to preclude prompt and accurate identification of colors.”

James failed all three of the exams, but he challenged the city’s medical disqualification of him by submitting the results of color-vision tests administered by his own ophthalmologist indicating that he successfully passed the Expanded Ishihara Test.

The city’s medical board denied James’ appeal, so he filed suit claiming the city discriminated against him due to his color-vision deficiency, failed to offer reasonable accommodations with respect to his disability and failed to engage in an interactive process to identify those accommodations he should have received.

Los Angeles Superior Court Judge Ernest M. Hiroshige granted summary judgment in favor of the city, finding it had declined to hire James because he “failed the minimum qualifications to be hired,” without regard to whether his color-vision deficiency constituted a disability under the FEHA.

Writing for the appellate court, Justice Jeffrey W. Johnson noted that the FEHA provides that an employer’s decision not to hire a candidate due to a physical handicap or medical condition constitutes unlawful discrimination. However, he said, an employer cannot be liable if its decision is based upon a bona fide occupational qualification where the candidate “is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”

Johnson explained that the determination of the essential qualifications for the firefighter job, and the appropriate objective criteria for meeting those qualifications, were “unquestionably within the City’s discretion.” As James offered no evidence that the city’s hiring criteria was defective or improper, Johnson posited, the color-vision test was a bona fide occupational qualification.

The justice reasoned that James had raised a question as to whether he could pass one of the color-vision tests used by the city by presenting evidence that he had passed it when administered by his ophthalmologist. But he said that did not demonstrate a triable issue of material fact as to whether or not James was qualified to be a firefighter.

Johnson commented that Johnson’s passing of the privately administered Expanded Ishihara Test, did not “somehow magically wipe[] his slate clean of the three failing results he had obtained in the City-administered color proficiency tests,” and said “[t]here was no reason or justification for the Medical Appeal Review Panel to disregard the reality of James’s failed tests.”

Unless the city’s tests were unfair or discriminatory in some manner, the city was justified in basing its hiring decisions on its own color proficiency tests, Johnson said.

Justice Frances Rothschild joined Johnson in his decision but Justice Victoria G. Chaney dissented, contending that the evidence James presented—that he could, and did, attain a passing score on one of the color-vision tests the city used when it was given by a qualified professional—was sufficient to raise a triable issue on whether the city fairly and properly administered and scored the test.

Attorneys on the case were David H. Greenberg and R. Scott Houtz of Greenberg & Rudman, and Deputy City Attorney Paul L. Winnemore.

The case is James v. City of Los Angeles, B222168.


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