present just vocally rather than in person may make it difficult to know when one person is talking and another wants to jump in if there are seem to be multiple people talking at a time i may intervene to call a halt and we will get things back on track we have so far been very successful with the technology but if something goes wrong we will get it fixed at no cost to any of the attorneys allocations of time finally i want counsel to know that i will do my best to remember to remind you at the time reserved for r when a minute or two is left in the argument that may be imperfect but you'll get notices sometime close to that and so we now begin with our st case against the union pacific railroad concerns employers overbroad and in some cases outright discriminatory policies targeting hearing impaired play the appellant in that case mark is an experienced train conductor who happens to suffer from hearing loss will not was terminated not because he was hearing what's worse and it did not but rather because he failed to run the gauntlet of his employer's increasingly more restrictive qualification standards understand this any way you look at this kate middleton the can do his job as a train conductor he can do his job wearing hearing aids and hearing protection as he did for nearly a decade he can do its job wearing hearing aids underneath standard hearing protection and he can do his job wearing any of a number of mr han chinese hearing protection device or hansen i thought his own expert conceded that it would be inappropriate to wear hearing aids on her hearing protection assertion is that requires some additional explanation just a book his experts did agree that it would be inappropriate to wear hearing in underneath an amplified hearing protection device that is essentially wearing two amplification devices d at the same time they did not express any discomfort with wearing a hearing aid under standard regular old here my protector that you would buy at the hardware store the district court fair in this case  alice's with regard to the representative sampling requirement the argument you've offered is that since two thousand and one there have been no instances in which the  lloyds level got above nineteen the d b a in the record there is some raw data going back a number of years with regard to instances when the d b a may have exceeded eighty five but still been less than ninety my question goes to where does one draw the line between representative and on representative samplin that's a good question i have not thought about that you know certainly the concept of a representative sample and you can find in the regulations and it just says i'm paraphrasing about it it says that you should function of the conductor proved position we should answer no i think in your brief you indicate the district court you believe was incorrect on that and you asked for remained on that basis is that your  refrain to make sure it's crystal clear we agree that meeting the f r a minimum requirement is an essential function everything above and beyond f r a minimum requirements is a non essential function and that doesn't that a railroad can't impose those requirements it just means you proceed past step one of a da and you have to look at things like reasonable accommodations and so forth but the thing about essential functions is it's really a threshold question under the a b a and if employers love it so much because it kills cases in their tracks at square one but not everything that an employer could can do legally is an essential function of course  essential functions have to be really fundamental attributes of the job and here so that i think the reasons that we've already touched on that's just not the case the sampling data doesn't support it this job description doesn't support it the part of the job description that talks about hearing protection is not listed under the section that defines essential functions and then really the most important criteria is the real world experience of these employees on the ground and mill nd to consistently testified that he did his job without hearing protection and so did everyone else who worked around him if i may i'd like to move on to the just report nd there on the essential functions analysis and really this is a more grievous mistake i mean that was holding the counsel that you have but i'm sorry mr question mr hanson your time is short and i think it might help you to spend some time on the accommodation question rather than continuing to talk about  essential functions i would be more than happy to do that let me just let me just summarize the nd point on essential functions because it is important and then i promise the court i will proceed on to the reasonable accommodation point with respect to the steering exams the problem is twofold these are the exam protocol is based on a fundamental misreading of the regulations which say without exception that a person can pass the hearing a test with a hearing protective device or one is not an essential function because because it is not applied to every work that is our argument and the reason you identify is really one several reasons why that argument is the correct one and just to pick up on that point before moving on that's a fundamental thing here you know if you're arguing as an employer that something is essential at a minimum that something has to be applied to everyone but what we have here is a discriminatory regime if someone passes security exam on aid they're considered good to go the certified they're on the job no one then turns around and says to those people please put on your hearing protectors let's test you again and see if you can pass with this with respect to employees who wear hearing aids it's different they have to pass the test wearing hearing protection and not just that with a single hearing protection device that union pacific has selected which violates not just the a d f but also the f r a regulations that specifically say there needs to core argument here is that this employer or really any employer can do what a business might find to be convenient and that's just sit back and tell an employee please come up with whatever you can we'll review it will give  point clearly and persuasively as far as i'm concerned with the interactive process but in the in the end it's still the point it's burden in such a case given considerable latitude by a failure to engaging  we don't think it will work well enough i'm interested in what would happen if the union pacific allowed your client to wear that device and its worst fears turned out to be true if it didn't turn out to be protective enough and your client suffered hearing loss your client would your client then have a tort claim or an f e l a claim or a road safety act claim against the railroad that if a plaintiff asked for that one of the a d f well that's an assumption i present but there's no tort liability let's be more concrete your client willing to sign a formal waiver of liability in the event the accommodation he proposed if accepted by the railroad proved to be inadequate i have not asked that question i think it's something that i would certainly as his counsel recommended i don't think there would be an issue that y recommending may not be enough right if you were well remember the railroad says we have a device that will protect hearing and if our device fails we're liable seems to me the mirror image is the worker says no i've got a device i prefer and if it fails i take the liability just advising your client about that isn't the same thing as concrete made below which is that a we had no choice we only disqualify just person because we couldn't certify him under the federal regulations that argument is now out that window and pacific is essentially claiming for the st time before than that horrible bureaucracies interactive process which can't be found anywhere in the statute i would like you to be concrete about what the employer's duty is how much w employer have to pay to conduct a test of the a are primo device right you the e e o c says well you can't just say the package doesn't provide the information we're looking for so take a flying leap the alternative is testing and then we need to be concrete about how expensive does the does the railroad have to devise a double blind medical study with five hundred or a one thousand participants and see what happens over a ten year period well what they are increasingly has to happen  done it doesn't like the fact that there's no particular claim on the box about thirty decibels of protection fine what concretely should the railroad have done next to try to find to do is to and encourage both parties to come to the table and talk about what would work you know i'm trying to encourage the e e o c to come to the table and instead of talking in very high level abstractions say what the employers want to have done concretely what the employer ought to have done is talk to the plaintiffs and together is the work it had presumably you'd have to test the wind the plaintiff to find out whether it actually provides sufficient protection truth so i d always did i was is it a reasonable accommodation to expect the employer to spend several one thousand dollars for a test that might not work well because to be fair the commission hasn't taken a position on whether any of these accommodations are good we are concerned with the law which is that the court resources that had it only used them it would have to say it would have been able to come up with some proposals because they've been providing accommodations they have a unit to do that they have a medical nelson was fired because he failed the federally regulated hearing test while wearing mandatory hearing protection does the f r a auditory acuity test require the employee to pass the answer to that is no and all conductors are required to pass the hearing test with or without their legs however the other equally important important protection here in regulation is protecting the conductor hearing which i think it is undisputed that you know pacifica has an obligation to protect the conductor hearing by having them wear hearing protection mr barstow should you could you address the hypothetical and maybe not so this reply brief in page twenty five in page twenty six of a conductor with moderate hearing loss let's say the better ear has a loss of passes the hearing required minutes for the auditory test itself union pacific has already researched and selected the devices that provide hearing protection where the noise reduction rating and then now if a conductor is within those hearing parameters that they can safely wear the hearing protection that is already known and that's why those devices are selected  mills because he's unable to wear hearing aids under any of those carry protections and i want to make that very clear judge easterbrook you asked that question didn't the experts agree that he could not wear hearing d protection under the scuse me hearing is under the hay protection and the answer to that is yes the questions that were asked in the deposition of his experts where regarding wearing hearing aids under assisted hearing protective devices but there was no dispute that a person cannot wear hearing aids under hearing protection it's very clear from dr solis report and that documentary ninety three why that happens a hearing aid amplifies hearing based upon that amount of noise that's coming to the ear so if you put enough over a hearing aid it's simply going to amplify the sound even more and in essence in essence take something that both amplifies the sound and the sound and that's why he must wear an assistant hearing protective device to pass the test because in essence it is a hearing and there is no way to meet both both standards without him being tested in that scenario and that's why he is not treated in a discriminatory manner that quite frankly is an affirmative accommodation that allows people like mr miller's the to nonetheless conductor despite their hearing impairment because followed the requirement for two to seven and interminable that there is excessive noise by conductors it follow the regulatory requirements to do a representative civil and there's no dispute that they instances in excess of ninety d b a since two thousand and one our review of the of the raw data showed i think five of forty three instances over eighty five in within the last since say two thousand and eight or so is there an expert report in the record that in which opinions are offered with regard to the sampling noisy locomotives used all those things is testimony that were not that was not offered at the district court level but where there is no dispute as you get pacific fall of the f r a regulations in doing represent represent a representative sample lane and based upon that representative sampling came up with a reasonable conclusion that hearing protection should be required but understand that we also argue even though we believe there's an f r a basis and we grounds for the motion to metamorphose from the district court to the district court on reconsideration to the court of appeals in particular because of the furries decision sure so number one i think it's a distinction without a difference in other words d it has been consistently argued as set forth the mr knows that even before the litigation that he needed to wear hearing protection while meeting the acuity requirements and i think that that's very apparent on the record a conductor when they're out in the field must be able to further leak communicate unquestionably and they must be able to do that while wearing hearing ringback protection need and then they're required to wear hearing protection on the job knocks things down another thirty decibels well st of all there's no expert testimony that that simple arithmetic is how we qualify because you didn't pacific has pre selected devices that they're comfortable that within the range of hearing that someone can hear they can wear the protective device and still communicate as the aurora wires how much  evidence before the district court that was put there to respond to an argument with noticeably different from the employer between the district court of the court of appeals and that's one of the troubling things about this la he can only disseminate twelve percent of words when the volume was turned up it's very important to look at rather than looking at things in a vacuum or theoretically looking at what mr mills that was able to do and that is of focusing on what's practical what can we do with the factual dispute about whether pointed has done his job safely and successfully with his normal hearing a without wearing protective devices ten years or more without hearing loss as i understand it and usually we pay a lot more attention to the way the job is actually done mills testified in his deposition that it was important for conductors to wear the appropriate hair d protection devices to protect their areas moreover dr cross his own expert and this is a documentary fifteen at forty seven testified that mr  him with the must that he claimed he wore over his hearing aids are working at union pacific to which doctor dr plus said that was not advisable so we have testimony in the record that is inconsistent and it's very very important that a self serving statement that mr mills to chose d to even assuming he chose to ignore this hearing standard d that self serving statement is not enough if we look at both both bas that is not correct he were hearing protection somewhere hearing protection we are required d to wear hearing protection then we are live or we do it we have no idea how much hearing loss mr milsom may have had if he didn't wear that hearing protection from two thousand and seven until two thousand and fifteen d remember the f r a did not require testing until two thousand and twelve and even then it grandfathered in conductors for two years before they needed to have a test done so there is no way for you to subject and mr mills that did have hearing loss between that time period it is imperceptible on a day to day basis to determine whether someone has hearing loss and because we didn't maintain an employee who may be unsafe and injure themselves or others but get a situation where if they don't take if they take action they violate the eighty eight or the in the alternative someone's got injured it's extremely important to understand that and again focusing on the record the evidence that was in the record not lately despite the supposed expert reports not arguments that were made on appeals but evidence that's in the record accommodation the two devices that were proposed one the years device that was never tested on mr mills that we have no idea if he could meet the requirements or provide the necessary care protection very clear here the only way for unit pacific to know whether something for violet's sufficient attenuation is to know the n r it is not and even the experts in this case could not come up with an alternative method to measure what the noise attenuation would be either for this product or that lately disclose product mr morris not have the extreme work to do on that question if you need specific identifies that the noise reduction rating is the one of the three methods that's necessary d is that enough to do that is that sufficient or is it just necessary so one of the three methods of me attenuation yes and the regulations allow you to pacific that she was any d of those three but it shows the n r r because that is from the manufacturer they can understand in the race attenuation it there are other it's in that instance we believe that mr mills is in an equally if not better position to identify a device but importantly d they've had five years extensive discovery experts manufacturers no one to this day has been a male to identify a device that will allow mr mills not to meet the hearing q d requirements and protect his hearing and that is why  by that last assertion mr moore because the district court assumed that such devices had been identified but the judge said too late is it your position that those right your your position seems to be to see employees must not only addenda find device that would work but tested himself rather than having not disabled employees are good enough and it doesn't extend the benefit of that assumption to a cheering parent this is discrimination and i would ask the court not to bless this discrimination and to reverse the district court grant summary judgment plus the court has questions i will sit down and thank the court for its time well thank you thank you very much mr hanson and you should know of course that on the phone nobody knows if you are standing in this case and taken under advisement