Since childhood, Christopher Carleton has suffered “bilateral mild to moderately severe sensorineural hearing loss,” meaning he lacks the necessary amplification to hear within a normal decibel range. To correct this deficiency, he has worn hearing aids in both ears from a very early age. Nonetheless, he has had significant contact with the fire service since the age of 17.

In 1997, he participated in a volunteer program sponsored by the Northborough (Mass.) Fire Department and the Boy Scouts. He took part in “all aspects of firefighting, except those involving entrance to burning structures.” He “received regular on-the-job firefighting training at weekly meetings.” He learned to operate fire ladders and fire hoses; was taught proper drafting techniques; and practiced using hydrants, driving fire vehicles, setting up lighting and fans on the fireground, assisting with the rehabilitation of firefighters, and assisting with salvage operations.

In 1998, Carleton earned his EMT license and began working intermittently for two private ambulance companies. In October 1999, he was hired as a 911 emergency dispatcher. In none of these activities was there ever a problem reported regarding his hearing or ability to communicate with others.

In addition, Carleton served as a “call” firefighter for the town of Stowe from January 2000 until 2002, successfully completing the Firefighter I certification course. This course included three days of “structural firefighting inside a burning structure and outside on the fireground adjacent thereto.” During those exercises, Carleton wore his hearing aids as well as head coverings and other equipment. Despite sweating, being sprayed intermittently with water and being exposed to significantly loud background noise, Carleton had no problem hearing or communicating with others, and his hearing aids functioned properly at all times.

On April 29, 2000, Carleton took the firefighter civil service examination and scored 99 out of a possible 100, placing his name close to the top of the civil service list. In April 2001, when he was notified that the City of Marlborough would be hiring two firefighters, he immediately informed the city that he would like to be considered for the position. Thereafter, he was scheduled for a pre-employment medical examination.

Because the city is a municipality within the civil service system, it is required to adhere to statewide minimum health and fitness standards for police officers and firefighters promulgated by the state division of human resources. At the time Carleton applied for a firefighting position with the city, the standard contained a maximum hearing deficiency threshold. If the applicant's hearing deficiency exceeded this threshold, he was deemed to have a “Category A” medical condition, which is considered incompatible with the performance of the essential job functions of a municipal firefighter and leads to the applicant's disqualification.

As a part of the pre-employment medical examination, Carleton was required to use headphones to listen to and identify different tones and different decibel levels. For the first iteration of the test, the examining nurse did not permit Carleton to use his hearing aids. The nurse then administered the test again, this time allowing Carleton to wear his hearing aids, even though their use was not permitted under the standard.

Three days later, Carleton was notified that he had failed the hearing examination. He appealed this determination to the division of human resources, stating that he had worn hearing aids for 15 years, was currently a member of the Stowe fire department and had never had a problem carrying out his duties as a firefighter/EMT. As a result of this appeal, the division asked Dr. James Ryan, the medical director of Boston Medical Center's Occupational and Environmental Medicine Department, to examine the test results.

Ryan concluded that, in his opinion, the testing was accurate based on the history of Carleton's disability and on the “wide margin by which Carleton failed the test.” He went on to say that hearing aids are not permitted to be used while testing. He explained that the reasons for the prohibition were that hearing aids do not permit accurate localization of the direction of sounds; can be swamped by loud background noise; may be subject to failure due to electronic malfunction or weak batteries during an emergency situation; and may act as radio receivers, picking up interference from nearby radio transmitters. Ryan added that “loss of effective hearing in such a situation … would place the life and safety of the firefighter and the public in danger.” Consequently, the division sent Carleton a letter denying his appeal because he had “failed to meet the public safety medical standards for municipal firefighters.”

Carleton subsequently filed an employment discrimination claim alleging handicap discrimination. He contended that the division should have allowed him to meet the hearing standards with the assistance of his hearing aids, arguing that he was “a qualified individual with a handicap who was capable of safely performing the essential functions of the job of firefighter with the reasonable accommodation of being permitted to wear hearing aids.” He did not claim that he could perform the essential functions of the job of a firefighter without the use of these hearing aids, or that the level of hearing acuity set by the medical standards is unnecessary to the performance of those functions.

Carleton then consulted with Dr. David Citron, a hearing expert whom he had retained in conjunction with his discrimination case, to do further testing. That testing appeared to show that even with the use of hearing aids, Carleton's hearing did not meet the division's standards. However, Citron explained that Carleton's hearing aids did not fit his ears perfectly during this examination and that the misfit likely accounted for the test results. At the doctor's suggestion, Carleton's hearing aids were sent back to the manufacturer for repair. Carleton then visited Citron for a follow-up evaluation with hearing aids that had been repaired and fit his ears properly. After this test, Citron concluded that Carleton had the hearing ability necessary to “perform the duties of a firefighter with no difficulties.”

Shortly after receiving Citron's report, and while the discrimination claim was still pending, Carleton was notified that the city was hiring six “permanent intermittent firefighters.” Permanent intermittent firefighters are placed on a separate reserve waiting list and hired when job openings appear, before the city consults the full civil service list.

The city approved Carleton's appointment to this position, once again subject to a successful medical examination. Carleton was again examined by the city's examiner. He was not permitted to wear his hearing aids during the hearing test, and the results of the test again placed him in Category A. Consequently, when the city presented the final list of appointments to the division, Carleton's name was not among them. The city also submitted a letter to the division making explicit that Carleton was not hired because he failed to meet the division's hearing standard.

Ultimately, Carleton's discrimination claim was considered by the Supreme Judicial Court of Massachusetts in Christopher Carleton vs. Commonwealth and Others, 447 Mass 791, 858 NE 258 (2006). The court began by examining the history of the division's hearing standard. In the mid 1980s, the statutory framework governing the civil service system gave the commonwealth's personnel administrator discretion to “establish physical requirements, in addition to those established by statute and rule, as prerequisites for appointment to any civil service position” and to “require an applicant … to submit to physical examination prior to [his or her] appointment.” The division subsequently issued guidelines concerning the rejection of candidates based on medical impairment, including deficient hearing.

In 1987, the Pension Reform Act directed the drafting of health and physical fitness standards applicable to all police officers and firefighters when they are appointed to “civil service positions.” The standards were to be rationally related to the duties of such positions and to have the purpose of minimizing health and safety risks to the public, fellow workers, and the police officers and firefighters themselves. The law made it plain that “no person appointed to a … police or firefighter position after Jan. 1, 1988, shall perform the duties of such position until he shall have undergone initial medical and physical fitness examinations and shall have met such initial standards.” The law further provided for police officers and firefighters hired after the effective date of the law to undergo periodic examinations at least every two years.

That same year, the division adopted standards “synonymous with and identical to the National Fire Protection Association's Document 1582, Medical Requirements for Firefighters.” The court noted that the NFPA is the pre-eminent fire code and standards organization in the United States and, quoting from an earlier Iowa case, that NFPA 1582 is “a standard that has been adopted by firefighting organizations throughout the United States.”

In 1995, the division began exploring the need to update its standards because of concerns that the old ones “no longer represented the latest research of the relationship between medical conditions and categories and actual job performance” and “needed revision to keep pace with developing case law around the Americans with Disabilities Act.” The resulting new standards divided medical deficiencies into two categories: Category A and Category B. Neither a candidate nor current firefighter could be certified as meeting the medical requirements of the standard if a physician determined that the candidate had any Category A medical condition. If a person had a Category B medical condition, he or she could not be certified as meeting the medical requirements of the standard only if the physician determined that the condition was of sufficient severity to prevent the person from performing the essential functions of a firefighter without posing a significant risk to the safety and health of him- or herself or others.

These standards took effect in 1997 and were still operative in 2001 when Carleton was first denied employment. These standards didn't allow an applicant to overcome the Category A classification by using hearing aids.

The division once more began considering revisions to its standards in 2001 based on an updated job task analysis report. This revision process included the selection of a new expert panel in the fields of vision and hearing. The panel agreed that an “adequate ability to hear is critical for communicating effectively as a police officer or firefighter.” It further said that “firefighters are more likely to experience problems with hearing aids during the performance of their duties at the fire scene. A hearing aid can fail due to being soaked or from excessive perspiration, preventing the wearer from performing a critical job function during the failure. It is possible that the failure could occur during a circumstance that is life-threatening. Police officers are not likely to encounter these types of conditions while performing their normal work duties.”

Based on these findings, the panel recommended that police officer candidates be permitted to use hearing aids to meet the hearing standard, but that firefighter candidates not be permitted to do the same unless the hearing aids used were implantable. (Implantable hearing aids are not, for all practical purposes, presently available.)

The panel also agreed that localization of sound (determining where it is coming from) “is not critical for policing or firefighting because the equipment and other background noise can hinder [the] ability to do so, and other cues can be used.” It further found that “hearing loss in firefighters is … common over time;” that “many incumbents are able to continue to perform their work, even with impaired hearing;” and that “there is little evidence that modest hearing loss is incompatible with safe performance of essential job functions.”

The revision process culminated in 2003 with the adoption of new standards, including revisions to the hearing standard. Consequently, although the new hearing standard contains a Category A hearing deficiency threshold, an applicant assessed with a Category A medical problem no longer will be excluded automatically from service. Rather, a person diagnosed with a Category A problem who still wishes to be considered for appointment will receive a full audiological examination. The new hearing standard allows the medical certification of more people suffering from hearing loss than would have been certified under the 1997 standard. Nonetheless, Carleton wouldn't pass either standard without the use of hearing aids.

The Massachusetts antidiscrimination law makes it unlawful, with certain exceptions, for any employer to refuse to hire, “because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation.” Whether an accommodation is reasonable depends on whether it would “impose an undue hardship on the conduct of the employer's business.” The law permits employers to adopt “physical or mental job qualification requirement[s] with respect to hiring” so long as they are “functionally related to the specific job [and] consistent with the safe and lawful performance of the job.”

The court noted that the public policies underlying the law are clear: to protect “handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of [employers] as avoiding exposing others to significant health and safety risks.”

The court said that it could see no irreconcilable conflict between the antidiscrimination law and the division's standards, notwithstanding the fact that the standards don't permit the use of nonimplantable hearing aids to satisfy the minimum hearing requirements necessary to perform the essential functions of a firefighter. The court went on to say that in any area where public safety is paramount, it did not read the law to preclude a determination by the division of human resources (rather than by a judge or jury) that an accommodation is not reasonable because it would impose an undue hardship on the conduct of the employer's (in this case, the public's) business due to the dangerous type of work involved and the nature of the risk to public safety that would arise if the accommodation failed — leaving the firefighter without an adequate hearing function — at a critical moment in the work. This is particularly so where such a determination is based on consultations with medical and occupational experts in the field; is not the product of prejudice, stereotypes or unfounded fear; and is ratified by the legislature.

Read harmoniously in this fashion, the court concluded that the statutes are consistent with and promote the legislature's purpose and policies of protecting “handicapped individuals from deprivation based on prejudice … while giving appropriate weight to … avoiding exposing others to significant health and safety risks.” The court said that where, as here, a level of hearing acuity reflected in the hearing standard is an essential qualification for a municipal firefighter (a determination not disputed by Carleton) and the accommodation sought (the use of hearing aids) is not a reasonable one as determined by the legislature, Carleton had no reasonable expectation of proving that he is a qualified handicapped person. Consequently, his claim was dismissed.

This case is noteworthy for a number of reasons, including:

• A definitive ruling (for Massachusetts) that people who require the use of hearing aids may, under certain circumstances, legally be excluded from employment as firefighters.
• The impact of standards making, specifically, the fact that NFPA 1582 was adopted by the state and therefore became law.
• Medical requirements for firefighters were distinguished from those of police officers, based on different working conditions.
• The importance of experts and thorough review of the subject matter when drafting standards and laws.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation. He is the secretary of the National Fire Protection Association and a member of the NFPA Occupational Safety and Health Technical Committee that drafted NFPA 1582.