I've got a few questions and hope this is the appropriate portion of the forum to ask it. I recently applied for a job as an civil engineer for a major railroad. The position was as a Bridge inspector and the job is purely relating to structural design and maintenance. It is not related to train operations. I was offered the job but in checking my status daily on the company's website, I noticed yesterday that the offer of employment was revoked due to failing physical and/or background check. A call to their HR department today revealed that I was disqualified from potential employment because I failed the Ishihara test(i.e. the spot test for color blindness.) and that a letter explaining the full details would be forthcoming. I was also told that all jobs with the organization which fall under engineering services require the applicant to have normal color accuity.

Being a color blind person, I naturally would not have applied had the requirements for the position specified color acuity as a being a factor.
Prior to applying, I did check other listed openings and several did specify color acuity as being required for those specific positions. When I mentioned this to the HR associate I was talking to she stated that they were not required to post color acuity requirements in the job description and left me with the impression that they had no intention of doing so in the future for this position.
Also, In the online job application there was no generic question asking for disclosure of IF the applicant had any disabilities that may limit the applicants ability to perform the various job functions. There was a question asking if you( i.e. the applicant) could perform the listed job functions with options for a yes or no answer only.

Prior to seeking employment, I had ran a background check on myself to insure that there were no convicted felons residing in the same county as myself with a similar name that would cause hangups in the background process. Similarly, I had also recently taken a physical examination to help determine that I had not developed any conditions I was not aware of that my hinder my employability. I was very confident I would not wash out via the physical/background screening process. In addition to turning down other interviews from potential employers during the five weeks of limbo between being offered the job and learning the offer had been revoked, I had also spent a considerable amount of funds to procure equipment neccessary for what I thought would be my new career( i.e. Goretex rain jacket and bibs, assorted cold weather outerwear, steeltoe boots, and several reference manuals on structural design).

Needless to say this whole process has been very frustrating and very disheartening.

Finally, here's the questions:

1- Is there any course of action that I can take to make this company include the color acuity requirements either in the job description or the application so that future color blind individuals applying for the same position don't go through what just happened to me? Again, it makes no sense to me why they would list the color acuity requirements for some positions that require it, but not others. Having applicants wash out for these positions for colorblindness is also a waste of their time and resources also. Could there be nondisclosure laws from other entities (DOT) that limit their ability to list this as a requirement for some positions but not others?

2- Do I have legitimate recourse for seeking reimbursement for the cost of materials that I had purchased for this opening? I'm pretty certian that since I bought these items on my own volition the answer is probably no, but thought I'd include it anyways.

Thanks,


Willie

Is there any course of action that I can take to make this company include the color acuity requirements either in the job description or the application so that future color blind individuals applying for the same position don't go through what just happened to me? No.

Again, it makes no sense to me why they would list the color acuity requirements for some positions that require it, but not others. Having applicants wash out for these positions for colorblindness is also a waste of their time and resources also. Could there be nondisclosure laws from other entities (DOT) that limit their ability to list this as a requirement for some positions but not others? Highly doubtful.

2- Do I have legitimate recourse for seeking reimbursement for the cost of materials that I had purchased for this opening? I'm pretty certian that since I bought these items on my own volition the answer is probably no, but thought I'd include it anyways. You are correct. The answer is no.

the easy one is the equipment you bought: no way. you bought in anticipation, without bona fide reliance. perhaps if they told you that you were being hired, buy some stuff, and then when you showed they refused you, then probably. but on speculation, no. Same with the background stuff. You did that to assure yourself, not them. You did that for you and since they were going to do it anyway, for themselves, on their dime, you can't recoup.

now as far as the colorblindness thing. this is bit trickier. and I'm afraid I don't have the answer. First is whether colorblindness is recognized under the ADA as a disability. I dunno, I mean it could go either way in interfering with a major life activity. After all sight is a major life activity, but then again you can still see. Don't know whether seeing in color is a major life activity. It likely is, and assuming so, then they have to have a credible and supportable reason to deny colorblind for this job. I imagine it has to do with safety, but not sure how. I mean a hazard cone is a hazard cone, orange only makes it more obvious, the shape may be enough. Similarly, signals along the railroad are likely colored according to location, and thus while color is nice, you can get by without. I dunno, this is something you are more likely to know about, but I wonder if they can support a prohibition on color blind in this position. You may want to run this by an ADA type attorney, or the EEOC. the theory here is not that they failed to include it in the position statement, but that by prohibiting colorblind applicatns without a bona fide reason, whether it is or is not in the position statement, may be illegal. Again, I simply don't know whether colorblindness is an ADA qualified disability and whether it would genuinely be a bar to this kind of job.

good luck, and let us know if anything happens.

curt j.

Colorblindness does not qualify as a disability under the ADA as it does not "significantly impair a major life activity." I know several people who are color blind and they do just fine. :)

Whether any condition (with the sole exception of HIV/AIDS) is an ADA protected condition is determined on a case by case situation. With the exception I already listed, no condition is automatically protected; it depends on the specifics of the job and how the specific individual is affected by it.

My husband is colorblind but his job does not require him to be able to identify color; therefore no ADA accomodation is needed or required. His colorblindness is immaterial. An employer would have no need to accomodate it.

At the other end of the spectrum, a job in textile design very well might require a better than average color sense; since the ability to see color would be critical to the job, the employer would not be required to eliminate the requirement and accomodation might not be possible. The employer could very well refuse to hire on that basis.

Whether color perception is a valid requirement in this position is something I can't answer either. Curt's example of a hazard cone is valid; the ability to see the shape, rather than the color, might be sufficient. On the other hand, there might be other issues for which color perception might be a perfectly valid requirement.

None of which changes the fact that they are not legally obligated to list color perception as a requirement in the initial job description. I can't think offhand why they wouldn't, but it's not a legal obligation either.

But here's what I'm thinking, cbg. Not only does colorblindess not impair a significant life activity, the inability to perform a limited number of jobs doesn't make it ADA protected either. I can't be a textile designer but there's 100,000 other occupations I can engage in therefore no reasonable accommdation need be considered.

I did work with an electrician once (at a mfg co) who first discovered he was color blind when he almost electrocuted himself - he couldn't tell the difference in the color of the wires. This was long before the ADA but it was simple enough for us to use number-coded wires in addition to color-coded. :)

I'm not saying it IS protected. But there are differing degrees of colorblindness ranging from red-green blindness (the most common) to my husband's inability to distinguish between shades of color (for example, blue and purple look exactly the same to him) to true color blindness, which is the inabilty to see any color at all, only black, white and gray.

I'm only holding out the possibility that there might be SOME situation in which some degree of color blindness might be considered a disability under the statute. You know as well as I do that nothing in employment law is absolute. I'm not saying it's applicable here.

EEOC considers working a major life's activity. If the color blindness eliminates you from an entire class of jobs, it may very well rise to the level of a disability under the ADA. If EEOC determines that you are a qualified individual with a disability and you have been denied a position because of that disability, EEOC will require the employer to show that perceiving color is an essential function of the job that you can't perform with or without a reasonable accommodation.

Discrimination under the ADA can also occur if an employer perceives you as disabled, whether you are or not. I'm not sure whether that applies to your situation.

If you are still interested in the job, you should contact EEOC and discuss filing a charge. For most charges, EEOC tries to get the parties (you and the prospective employer) to voluntarily resolve the dispute. If you go that route, you can ask the employer if it would be willing to reimburse you for some of the costs you incurred thinking that you would be employed. It might be willing to do that, to end the matter without employing you or having the government scrutinizing their employment practices.

The definition of disability under California law is considerably broader (the CA language is "limits," not "substantially limits" ) and "working" is considered a major life activity - so if a condition affects your ability to work, it is likely to be considered a disability.

You might want to ask them about a reasonable accomodation that would let you do the job (not knowing much about the kind of work you do, I can't make a specific suggestion about what to ask for).

California Goverment COde 12926

(k) "Physical disability" includes, but is not limited to, all of the following:

(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:

(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

(B) Limits a major life activity. For purposes of this section:

(i) "Limits" shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.

(iii) "Major life activities" shall be broadly construed and includes physical, mental, and social activities and working.

(2) Any other health impairment not described in paragraph (1) that requires special education or related services.

(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.

(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.

(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).

(6) "Physical disability" does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.

(l) Notwithstanding subdivisions (i) and (k), if the definition of "disability" used in the Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (i) or (k), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (i) and (k).

And Megan, why does your response about California's more "liberal" definitions not surprise me. :rolleyes:

I think it's because you are jealous of those of us who work in such an employee-friendly state! :p

I guess it's all in how you look at it. As the one who would have to administrate these laws (I've worked primarily in multi-state environments where we had to have entirely different procedures for CA than the rest of the company) you couldn't pay me enough to live in CA.

You could pay me enough to go back. It would be huge, but it COULD be enough. :D

Wow. First, thanks to everyone for taking the time to provide so much information in this discussion. I did get my official letter today explaining why the offer was revoked. It does state that the offer was revoked due to the fact that I failed the color vision portion of the physical exam and that the position requires color vision for safety issues. It also goes on to say that they will accept my reapplication for other non color vision positions they have available( a total of ten different positions).

This whole process has been baffling to me in several respects. A friend of mine works for this company as a bridge maintenance worker. He is good friends with the individual that was going to be training me and that individual was prompting him to call me every other day or so to find out if I’d heard anything about my status. When I told him that after I had failed the Ishihara test (i.e. the spot test) the company had a local area eye doctor come out to administer further color acuity testing on me at 9pm on a Thursday night; my friend began to inquire about how this may affect my status to members of the management in the bridge department where he works. None of them were certain that this would have any affect on my status but didn’t seem to be inclined to think that it would from a safety aspect. None of them could think of a reason why Daltonism would impair my ability to do this job. From what I’m told, work crews are scheduled around train schedules and also when a maintenance or inspection crew is actively working on a section of track, that section of track is also “red zoned” and shut down in case the maintenance activities take longer than anticipated, since all those crews travel the same rails the trains do in specially adapted trucks that are designed to ride the rails. Still as a color-blind person, I’m not willing to conclude as a absolute that I wouldn’t in some way be imperiling the safety of myself or others based solely on their opinions. I think that because the HR department is washing out individuals with Daltonism there probably isn’t anyone in the bridge department that is colorblind and as a result of that, there may indeed be situations where a color impaired person may cause problems but they haven’t encountered that situation because it simply has never been allowed to occur.

The other thing that I find baffling is the fact that given the small list of jobs I would be eligible to do, 98+ percent of the openings listed on their website require color vision. Only about five percent of those jobs list it as a requirement on the part of the applicant. This is one of the largest transportation companies in the US and operates over 23 states. They currently have about 500 listed openings across the country. I’ve got to assume that this company is probably hiring upwards of 1000 new employees a year. Considering that back in March, I’d already received a prepaid registration for an out of company training conference that they were going to send me to (streambed erosion at a cost of $370 plus lodging costs), the cost of the physical at close to $500 and the costs associated with the eye doctor administering a late evening test on short notice, and the costs of the background process; I’ve got to assume that they just spent upwards of $1200 attempting to hire me. The case mentioned above about the electrician I think is the exception, since most people who have Daltonism are well aware of that prior to high school here in Ca. Given that nine percent of the male population has Daltonism, I would have to assume that this company is spending upwards of $80,000 a year processing people who will wash out because of the color acuity requirement. Again, I simply don’t think any of these people would be applying for these positions had they included the color requirement in the various job descriptions. I can’t imagine a way for a person with Daltonism to devise a way to cheat the Ishihara test and can't rationalize why they only post the requirement for a small fraction of the positions that it pertains to. Nonetheless, this is a large company and I’ve got to assume they’ve encountered every possible dilemma in the hiring process and that there is some purpose for not listing the requirement even though that reason isn’t intuitive to me. I do plan on writing them a letter asking them why they don’t list the requirement in their job description templates and if there is a reasonable accommodation that would allow me to do this job while maintaining their safety standards. I’d like to get some feedback from the members of this forum, so I’ll post the letter here after I write it.

I've been thinking over why color acuity might be required and if you are inspecting bridges, is it possible that you might miss subtle deteriorations such as rust, wood rot, or oil spills if you can't see the color differentiations?

Elle,

I don't see that as being a factor and I actually know a bridge engineer who works for the state Dept. of Transportation who is colorblind. The letter I got indicates that this is a saftey issue. From the letter:

"Dear William,

XXXXX Railroad Company recently offered you employment as a bridge inspector. As you were informed, the offer was contingent upon successful completion of a pre-placement medical exam.

As you are aware, you did not pass the COLOR VISION (capitalized for emphasis in the letter) test component of the visual exam. Bridge inspector positions are saftey sensitive and do require COLOR VISION. Therefore, our offer of employment as a bridge inspector is withdrawn.

XXXX Railroad will accept your re-application for employment through normal hiring practices for non saftey sensitive positions....." It then goes on to list those ten positions.

Most people who learn that I'm colorblind usually begin asking me to indentify colors(i.e. What color is my shirt/jacket? etc.) I think there are a lot of misconceptions about Daltonism. There are different degrees of color blindness(red-green, blue-yellow, etc) and different severities for each type. I've never met another color blind person who claims to see the world in a black and white greyscale.

Here's a link:

http://www.vischeck.com/daltonize/
Vischeck: About Daltonize

Again, I'm not certain how accurate these comparisons are since I've only got one perspective. But the main differences I see in the pictures of the man selling fruit is that the image seems sharper and less fuzzy in the color impaired simulation and the colors seem more subdued.I can see five distinctly different colored piles of fruit in front of the man in the top picture, but the last two piles appear to be the same color to me in the color impaired simulation.

In the pictures of the cells, the main difference for me is that the second image is sharper and brighter in the cell bodies.

Paging down to the Ishihara plates lower on the page, I see the number 45 clearly in images 3 and 4, but the top two images are colored spots in no discernable pattern to me.