Woman In Labor: Court Denies Interpreter For Deaf Husband Because Request Not Like “Buying A Bag Of Chips”

I would like to know if the terms used by a judge in dismissing a disability claim — that the request for an accommodation was the equivalent of a “bag of chips” and was a “try on” –  has some local colloquial meaning or are simply insensitive words in any language.

Potato crisp packet opened with crisps spilling out

I know what he meant, but do the terms “bag of chips” and “try on” have any particularly significance that I should be aware of?  I tend to collect/publish ageist, racist, and other “ist” usages from court cases but I never heard terms like these used.

Can my friends in Australia help me?

This is not a case of employment discrimination, to be sure, but I post it as an example of tone-deafness in a court dealing with a disability case.  (Does anyone know of there is a reasonable accommodation for “tone-deafness?”).

An Australian woman in labor was forced to change hospitals because the private one she was in “was unable to provide a sign language interpreter for her husband Anthony, who is deaf, to help him communicate with medical staff during the birth of their first baby last year.”   Apparently (but I cannot say for sure), an Auslan interpreter was legally required to be provided for free.

Sign Language 1

(Auslan is the sign language of the Australian Deaf community. The term Auslan is an acronym of “Australian Sign Language.”  See Wikipedia).

She sued under the Disability Discrimination Act, and the trial judge dismissed her case, ruling that her situation was a “trifle” and “nothing more than a try-on.”  According to the The Sydney Morning Herald, the judge compared her request to her “buying a bag of chips” and “expecting the shopkeeper to provide an interpreter.”  (Oh, is that what the “bag of chips reference meant?)

His ruling, however, was reversed by an appeals court, which held that:

“In the present case, the fair minded lay observer would identify from the strong conclusions expressed by the primary judge in the hearing and his reasons (for example, that [Mrs Hinton’s] claim was the equivalent of a “bag of chips”, was a “try on”, was a “baseless trifle”, was “doomed”, depended on a proposition that was “rubbish”, and was an obvious “abuse of process”) that his Honour might be caused to decide the case on other than its merits.”

In other words, that’s a diplomatic way of saying that “his Honour” was biased, or had some other improper interest in the case.

Indeed, the article implied as much when it noted that Last year, the Full Court overturned Judge Street’s ruling that Virgin Australia had the right to refuse to board a guide dog belonging to a man with a cerebral palsy and sight and hearing impairments. The airline was ordered to pay $10,000 compensation.”

The appeals court further stated: “It is hardly a trifle (and still less equivalent to buying a ‘bag of chips’) for a woman not to be able to deliver her baby in the hospital of her choice merely because the hospital refuses to provide her husband with the interpreter required to ensure he can participate in the birth in the same way that a woman with a partner who can hear would be able to participate.”

Takeaway:   None today.  Just wanted to bring up an interesting case.   


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]