Fear Of Heights? Don't Let That Stop You From Being A Bridge Worker!
As I tweeted to @evolutionarypsy about hang-gliding:
I tend to avoid any sport where there's some likelihood that my head will end up looking like salsa.
I've likewise managed to avoid careers of that ilk.
By the way, I get carsick from my own driving (let alone others' -- Gregg was very good-natured when I got carsick and threw up when he was driving us around D.C.!) I also get nauseated on plane landings and when there's more turbulence than that you'd feel with a car going over a small speed bump. Yes, I'm a fragile little canary in some ways.
Luckily, I recognize this as reason to not become a delivery driver, airplane pilot or flight attendant -- not as reason to get a job doing one of those things and then sue the airlines or Fed Ex for expecting me to fly or drive.
Not so in Illinois. Walter Olson blogs about an ADA-related Seventh Circuit Court decision that said a bridge worker with fear of heights can proceed with his suit "contending the Illinois Department of Transportation should have done more to accommodate his wish to work only on those bridge maintenance tasks that did not leave him in an overly exposed position."
But, what if everybody who gets employed by the Illinois DOT starts to contend that they have a fear of heights? Do we just let the bridges crumble while all the bridge workers fearful being of high places play cards?
Is there not something in the job description that describes the working conditions? How is this legal? (If I had a nickel for every time I ask that...)
Just Sayin' at June 6, 2011 8:27 AM
Sounds frivolous, but I'll give the court the benefit of the doubt. My fear is some jury decides to reward this (man?)'s spinelessness. It could be that heights paralyze him. If so, why that job? I would love to hear a 3-word verdict returned: SUCK IT UP.
DaveG at June 6, 2011 9:17 AM
PS Is fear a disability? It's natural and involuntary, and to paraphrase "Remo Williams" it's a feeling - feelings can't kill you. But phobias can be diminished and eliminated by facing the feared item. My legs used to turn to jelly at the top of a ladder until I forced myself to let it go.
If a worker says he must be accommodated for Condition X, and Condition X has a simple remedy, can't it end there?
DaveG at June 6, 2011 9:22 AM
Amy:
First off, as a libertarian, you should take notice of which judges sat on the 7th Circuit panel in this case-- specifically, Richard Posner, one of the most distinguished living legal scholars, and the founder of the "law and economics" movement. Posner is as close as you can get to a libertarian jurist. Not that you'll always agree with him, but if you see Posner's name on an opinion, it bears a closer look.
Walter Olson doesn't do much analysis of this decision. Yes, the 7th Circuit held that the plaintiff could proceed with his case, because a reasonable jury may find the Illinois Department of Transportation violated the plaintiff's rights under the ADA by refusing reasonable accommodation for a disability, his fear of heights. However, Olson doesn't discuss the specific facts that led to the 7th Circuit's decision, and the facts here are crucial.
The 7th Circuit opinion describes Miller's job:
This description shows that working at height was only a fraction of the plaintiff's work. The court further describes plaintiff's limitations:
The Court then notes that plaintiff's work crew adapted itself to various crew members' work limitations:
Miller worked on the bridge crew for 4 years. During that time, the crew informally accommodated Miller's limitation by adjusting work duties among the crew members. However:
Based on one incident in 4 years of work, the IDOT decided that Miller was unable to perform his work duties, and put him on leave.
The Court then analyzes whether a reasonable jury could find that the IDOT failed to make reasonable accommodation for Miller's disability:
Given all those facts, I'd agree with 7th Circuit's decision.
Dale at June 6, 2011 10:03 AM
The U.S. is discriminatory in other ways too.
Blind people are denied driver's licenses.
Quadriplegics can't play in the NFL.
Illiterates cannot be newspaper journalists. (insert NY Times joke here)
A convicted criminal in jail is refused permission to apply to become a police officer.
hadsil at June 6, 2011 10:08 AM
So this is your Americans with Disabilities Act at work. The Circuit overturned the judgment of the lower court that working at heights is an essential function of the job; in all of its wisdom, the Circuit decided that the plaintiff's co-workers could cover for the plaintiff because they had been doing so for four years. So, in effect, the Circuit has decided that there exists a privileged class of workers who don't have to do any of the hard tasks, even though they get paid the same.
So the case now goes to trial. And there's a dirty little secret here: I can't confirm it (because none of the reports mention it) but from the description of where the guy was working, I strongly suspect that the original lawsuit was filed in East St. Louis, which in addition to being the anus of the Midwest, is also a notorious jackpot-jury district where deep-pockets defendants don't stand a chance. So DaveG, the answer to your question is that the jury will reward the guy, and handsomely.
BTW, you know why the plaintiff was fired? He threatened a supervisor who was trying to accommodate his request for a reassignment. Oddly enough, the supervisor was having trouble finding a position for a bridge worker that didn't involve any, you know, actual bridges. Apparently the plaintiff's court-established privilege extends to threatening to "knock the teeth out" of anyone who doesn't work hard enough to cover his ass.
Cousin Dave at June 6, 2011 10:14 AM
"In spite of his fear, Miller was able to perform work in an elevated, hydraulically lifted “snooper bucket” at heights of up to 80 feet, and he was able to crawl on the arch of a bridge on a catwalk."
Dale, the article that Olsen linked to implied that the plaintiff had decided that he was no longer willing to perform these duties after his panic attack. That might actually be wise on his part -- his panic attack was an immediate safety hazard to his co-workers and to anyone who was using the bridge at that time. It might have necessitated a "cliff-edge" rescue attempt, and worse case, it might have resulted in the plaintiff's and/or other people's deaths -- which would have led to a wrongful-death lawsuit against the IDOT, plus OSHA on their case. If Posner did in fact write or concur with this opinion, then I'm very disappointed in him. I wonder if he'll be willing to write about the case in his blog.
Abuse of the ADA is legion; bad lawsuits under the Act grossly outnumber the good ones (about 70% of all of the lawsuits filed under the Act claim unspecified back injuries that are impossible to prove or disprove). Remember the story about the the lawsuit mill in California that filed tens of thousands of lawsuits against restaurants which their professional plaintiff had never visited. ADA clogs courts with bad lawsuits, and it forces defendants who have done nothing wrong to spend millions in legal fees.
Cousin Dave at June 6, 2011 10:26 AM
Cousin Dave wrote:
I didn't see that. In the court opinion, it's clear that IDOT restricted Miller's activities more than he thought necessary. Can you quote the passage you're talking about?
He joined in an unanimous opinion written by Judge Hamilton. I don't see how the panel could have reached any other decision. How can the panel say as a matter of law that it's an unreasonable accommodation, and that no jury could find it reasonable, when the defendant voluntarily made that accommodation for four years? Illinois tied its own hands by its previous actions.
Maybe so, but the remedy is legislative action to repeal ADA. Even if ADA is bad law, I think the court interpreted it correctly in this case.
Dale at June 6, 2011 11:18 AM
Dale, I am really glad you are here. It is such a pleasure to read your thoughts, and see your work.
You too Cousin Dave, for keeping the flow.
Thanks guys.
Dave B at June 6, 2011 1:03 PM
TO: All
RE: Heh
I took up high school debate because I was afraid of public speaking. Got an 'F' in an English class presentation. Walked out the door, down the hall and joined the Debate Club, ten minutes after getting that evaluation.
Later, took up jumping out of perfectly-good-aircraft-in-flight, at the behest of our rich Uncle Sam, for a fear of heights. And later, scaling rock precipices...something to do with a 'spa' the Army operates out of Benning School for Boys.
However.....
.....I AM STILL 'uncomfortable' with 'heights'. I treat them with 'respect'....for MY 'life'.
Regards,
Chuck(le)
[You haven't lived, until you've almost died.]
Chuck Pelto at June 6, 2011 2:21 PM
P.S. As some wag put it....
He has not learned the lesson of life who does not every day surmount a fear. -- Ralph Waldo Emerson
Chuck Pelto at June 6, 2011 2:24 PM
Dale, there was a passage in the Lawyers USA article (that Olson linked to) that I may have misread, but it's confusing. It says: "Miller insisted he could still perform most aspects of his job without a problem, and requested a reasonable accommodation in the form of not being assigned tasks on bridge beams and other extreme places over 20-25 feet in height." I read two contradictory things in this statement: (1) The plaintiff says he can still perform most aspects of his job, including the specific example of the bucket truck at 80 feet; (2) he no longer can perform any task at a height of greater than 25 feet. I'm not sure how to reconcile those two things; maybe the report was mistaken in some manner.
The thing that really surprises me about the decision, though, is that apparently the jury will have complete freedom to decide what is and isn't a reasonable accommodation. Is the ADA really written that way? Does it have any guidance at all as to what is a reasonable accommodation and what is not? To me, this borders on allowing the jury to create its own law, which seems like it would lead to wildly diverging precedents.
(The other disappointing bit is that I'm now almost certain that this lawsuit was filed in Madison County, Illinois. Which means that IDOT hasn't got a prayer. Based on past cases in this jackpot-jury district, Miller will probably receive an award in the hundreds of millions of dollars, and then the case will drag on through the appeals process for another ten years.)
(While I'm thinking about it... what's the diff between 25 feet and 80 feet? Is there a typical height at which acrophobia kicks in for a person who suffers from it? Need to do some Googling.)
Cousin Dave at June 6, 2011 3:45 PM
Hey, Chuck is back! Welcome back buddy! I missed ya!
Eric at June 6, 2011 5:43 PM
(1) The plaintiff says he can still perform most aspects of his job, including the specific example of the bucket truck at 80 feet; (2) he no longer can perform any task at a height of greater than 25 feet.
What he is talking about is that being in a bucket 80 feet up -- you have essentially 4 wall and a stable platform and a "lifeline" harness. When you are walking a beam -- you have an 8-12 inch wide steel beam with no railings and are generally relying on your sense of balance and maybe a few hand holds to move around. You will have a lifeline on -- but it is still a different experience.
Jim P. at June 6, 2011 6:05 PM
(1) The plaintiff says he can still perform most aspects of his job, including the specific example of the bucket truck at 80 feet; (2) he no longer can perform any task at a height of greater than 25 feet.
What he is talking about is that being in a bucket 80 feet up -- you have essentially 4 wall and a stable platform and a "lifeline" harness. When you are walking a beam -- you have an 8-12 inch wide steel beam with no railings and are generally relying on your sense of balance and maybe a few hand holds to move around. You will have a lifeline on -- but it is still a different experience.
Jim P. at June 6, 2011 6:11 PM
"You will have a lifeline on -- but it is still a different experience."
Not sure I buy that. Acrophobia is called a phobia because it's a (usually) irrational reaction; the relative safety of the particular situation does not factor into the primitive part of the brain that's responsible. I recall standing on the glass floor of the CN Tower in Toronto and feeling that reaction myself, and seeing other people in the room freak and absolutely refuse to step on it, even though it was a totally enclosed space and there was no danger whatsoever.
Cousin Dave at June 6, 2011 8:35 PM
I've done a lot of work at height for Telecommunications. I can easily recall many occasions where working at 25 feet was much more difficult and scary than 450 ft up. It simply depends on where you are on the structure, and what the structure is. If you are basically secured to a ladder and working right in front of you, no big deal (at least for me). If you have to suspend yourself down on a rope to get above something and are just hanging by a thread, well it can be a little disconcerting.
I don't know at all the bridges or structures this guy is working on. I'm more familiar with working all over towers and buildings. I have a rule with my guys. If they feel uncomfortable doing something, speak up and someone else will do it, or if we judge it not to be safe, we simply do not do it. I have to climb towers site unseen all the time. We HAVE to be safe. I would never send someone to do something where they are frightened, and the guys have to be mindful of their environment. One missing bolt and you don't see it and so long, it was nice knowing you.
Again, some situations are more "extreme" than others. I know situations where I'm able to get places that other people I work with can't so easily (not having my wing span).
All the above aside, I wonder why this guy is getting let go and then the bad blood of a lawsuit. I wouldn't work with anyone that didn't have my back. I understand Amy's comment about the basic oppurtunity for a racket whereby one gets hired for a job (adding value to the employer) then bunts with whining about not being able to do the job do to a disability. So other people have to pick up the slack. All the more reason to have clear job descriptions. I'm also of the opinion that an employer should be able to fire for any or no reason if they so choose, unless there is a contract. Then the contract reigns. Maybe I'm in the minority here.
Abersouth at June 6, 2011 9:28 PM
If things had been working fine I wonder why things changed. Did the other team members (or even just one) complain that he wasn't pulling his weight. Are they looking to get rid of him for another reason?
My brother works a similar type of job. There they have all kinds of rules about opportunities and responsibilities. This was because some people thought others were being treated better than them. For example, the downtown crew generally has more oppurtunity for over time (which is paid) so people have to be shifted between crews regularly (generally about 1/yr...at least ever 1.5 years). For a job title, everyone has to be able to do all the tasks. If the employer wants to have different tasks then there has to be different titles because if someone cannot do all the potential tasks that might mean the person gets more favorable assignments.
I would not be surprized if the employer is between a rock and a hard place.
(I am very tired...I hope that made sense.)
The Former Banker at June 7, 2011 12:12 AM
So if you get busted for drug abuse at work, you have the right to company-paid insurance-covered detox and psychotherapy for your recovery and return to functioning. But if you have a phobia, forget the same available company paid psychotherapy for recovery and return to functioning. Just sue.
I'm not buying it.
Juliana at June 7, 2011 4:34 AM
Amy: Forgive me if you've already tried these unsuccessfully, but have you tried Sea Bands for your motion sickness?
Sea Band Adult (Colors May Vary)
They cost less than $10 at the drugstore and work using acupressure (not to be confused with acupuncture). You put 'em around your wrists with the little white dot in the middle of the undersides of said wrists. I and several friends have had great luck with them.
marion at June 7, 2011 5:48 AM
Reasonable accomadation would be fine if they could reasonably be paid less for doing less work or to cover the cost of the accomadation.
But...I'll betcha the beneficiaries of the ADA don't want that.
Robert at June 7, 2011 5:59 AM
Amy Alkon
http://www.advicegoddess.com/archives/2011/06/06/fear_of_heights.html#comment-2228172">comment from marionThanks, Marion...On a plane, I sat next to a cool older woman who was a NASA scientist who told me the pressure point thing really does stop nausea. I used my finger on the point to stop myself from throwing up on the small plane to DC from Binghamton. (Steve Platek, a researcher I know, was sitting across the aisle from me and I was really, really motivated that his last view of me wasn't going to be me with my head in a paper bag, hurling!)
Amy Alkon at June 7, 2011 6:36 AM
I miss the days when men were expected to man up and not be crying little pansies.
It used to be that a man's pride was such that he'd sooner face his fears than be pitied or excused because of them.
Now he gets paid for them instead.
I fucking hate this century.
Robert at June 7, 2011 9:00 AM
I have a fear of heights, and I remember when it started. I used to not have it, but then one day as a young buy my mother took me to her office in a skyscraper. I walked to the window as I liked to do to look outside. I had already been to the Twin Towers. I've always done this to look below. This time all of a sudden my stomach turned, and I jumped back from the window. I could not bear to look down.
Ever since then I had mild acrophobia. I've been able to go on rollercoasters and look out windows of skyscrapers, but sometimes I just can't look. When in Las Vegas I purposely have one meal in the Astrotower restaurant. I'm scared like crazy, but I do it. A few years ago I had the crazy notion to walk across the Queensborough bridge with a friend. I was literally frozen in place when I got to the pedestrian platform. It's a mesh grid, so you can see the ground/water below. For 10 minutes I could not take a step forward. I still wanted to walk across. Struggling not to look down, I preoccupied myself by speaking about an unrelated incident to my friend as we walked across. Looking at Roosevelt Island was ok. Seeing down from height at a distance doesn't bother me. It's when it's right next to me that it does.
I've been on top of the Empire State Building. I've flown in an airplane. I can manage it, sometimes.
hadsil at June 7, 2011 10:55 AM
"So if you get busted for drug abuse at work, you have the right to company-paid insurance-covered detox and psychotherapy for your recovery and return to functioning. But if you have a phobia, forget the same available company paid psychotherapy for recovery and return to functioning."
Not a good analogy. You can stop taking drugs, if you really want to. But a phobia is an involuntary reaction, and it can't always be fixed with therapy.
Cousin Dave at June 7, 2011 11:48 AM
"If things had been working fine I wonder why things changed. "
The article says he had a panic reaction one day. It doesn't go into detail; I'm wondering if he had to be rescued by his teammates. If that was the case, if I was one of said teammates I would certainly not want that guy on my crew again; who knows when he'll freak out and put everyone else in danger? But then, if the employer insists on his remaining on the team, now when the team goes out of a job, there's a lot of tasks he can't do.
So is he standing around while his teammates work, because there is no task he can do? If so, obviously that's a problem. Even if he isn't standing around and there are tasks he can do, part of the reason these bridge workers make the money they do is because there aren't that many people willing to take on the dangerous tasks. If the plaintiff is no longer doing any dangerous tasks, but still getting paid the same as his teammates, then there's going to be a problem. The employer might try to place the guy in a desk job that pays the same, but do they have any such job that he is qualified for?
Cousin Dave at June 7, 2011 11:56 AM
Greaaat. The next time I go hang gliding I've got something new about which to think-that my head could end up "looking like salsa". Hilarious.
But back to the topic at hand: What the hell's next?! What if someone's not afraid of heights but afraid of widths? Can Park Service employees sue for "Fear of Wide Open Places" & the lack of concern for being exposed to them? THEN what's next-"Fear of Large Women in Comfortable Shoes"?! Cuz believe me, when I was a skinny young 20 something, those ladies'd look at me like a starving dog looked at a friggin' rubber bone! Youuu talk about frightening!
Amy's great!
adambein at June 7, 2011 3:01 PM
When future generations look back and wonder how incredibly stupid and ridiculous humans could be, they won't look at the era of witch trials or of denying the earth was round, they'll look back on our generation.
Lobster at June 8, 2011 2:19 AM
"How can the panel say as a matter of law that it's an unreasonable accommodation, and that no jury could find it reasonable, when the defendant voluntarily made that accommodation for four years?"
So based on your logic (that someone becomes obliged to be given an unreasonable entitlement if that unreasonable entitlement was given in the past), the message is very clear then to all employers everywhere: You must be completely non-accommodating to employees with any kinds of issues right from the start, especially those with disabilities! Don't grant them an inch of leeway, because from the moment you do, they are thereafter apparently legally entitled to keep receiving leeway.
Lobster at June 8, 2011 2:25 AM
I have a fear of heights; however, I am also a private pilot. I am not bothered in an aircraft at 10,000 ft., unless the bank angle is very steep. I have been in a helicopter circling on its side with me looking straight down at the ground out an open door. However, looking over the edge of a two-story roof is totally terrifying to me. It is not a rational thing.
ken in sc at June 8, 2011 10:23 AM
I have a phobia about spiders, last time one acctually touched me I was walking thru my kitchen when a fairly harmless spcies of spider scuttled across my foot. I looked down, saw what it was and the next thing I knew I was ten feet to the left and on top of my freezer, an up right about 7 feet tall.
God I hate those things. Did you know if spiders were the size of small cats they'd have the streangth to hunt down humans, and god forbid they ever evolve into a hive species
lujlp at June 8, 2011 10:50 AM
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