Refusal To Hire Deaf Applicants: Two EEOC Settlements

Two ADA cases filed by the EEOC involving hearing-impaired or deaf job applicants are in the news – one against an Ohio housing and care service provider.

As readers know I track ADA cases filed by the EEOC against health care providers – of which there are an inordinate number – because I believe that they are easy pickins’ for the EEOC.   What I’ve called “low hanging fruit.”

The Ohio employer settled for over $30,000 in a suit which alleged that it refused to hire an applicant “because she is deaf and cannot speak. [She] applied for the site manager position at one of the [housing service provider’s] housing communities. Despite its being an apartment complex that gives preference to deaf residents, [it] required the successful job candidate to be a hearing individual.”

Think about it – a religious-affiliated care provider which “gives preference to deaf residents” refuses as a matter of policy to hire people who are hearing impaired – irrespective of their particular circumstance, or their ability to perform the job duties – with or without reasonable accommodation.  SAD.

In the EEOC’s second case, a Texas cellphone repair facility was alleged to have denied employment to two hearing-impaired applicants.  The company became aware that they were hearing-impaired after observing them in a group interview using American Sign Language (“ASL”).  When they asked to receive written information about the job positions they were ultimately not hired.

They just settled for $110,000.

Rigid Policies Against Accommodations Are Prohibited

Some years ago I wrote about a similar case in which an Arizona federal judge ruled against a company which had failed to hire a hearing-impaired applicant because of her disability, and failed to accommodate her by sticking to its “rigid policy or practice of denying hearing-impaired applicants’ requests for interpreting services costing more than $200 to complete its pre-employment orientation and training.”

An EEOC attorney said that “It’s not only bad business to forgo hiring a qualified employee simply because of fears, biases or stereotypes against people with disabilities, it’s also a violation of the law.”

One Hearing-Impaired Reader’s Experience

At the time I received an email from a hearing-impaired lawyer who had read my blog. He wrote plaintively about his disability and its consequences:

“Only the hearing impaired and some doctors actually believe hearing impairment is a disability. Even lawyers almost unanimously think the hearing impaired are (1) cognitively impaired, (2) lying, (3) not trying hard enough, and (4) crazy.

Saying one needs accommodation almost uniformly makes people (1) contemptuous, and (2) angry. For some reason, virtually all hearing people seem to think that one is pretending that there is something wrong with their voices. They angrily tell one to listen harder, to get one’s hearing aid adjusted, or, perhaps best, to get one’s ears cleaned.

Lawyers tell us we have to expect not to work if we’re going to act this way–or best, ‘rather than whine, all the hearing impaired lawyers should get together and give each other work.’

Many of us were born this way.  We hardly know what we’re not hearing even when we can hear sound drop out and we watch lips move silently at the other end of a conference table or across the court room or at the grocery store checkout.  You can imagine how well we network — and give each other work ….”

EEOC Accommodates The Hearing Impaired

A year ago, I noted that the EEOC had announced that it was “launching a new service that will enable individuals who are deaf and hard of hearing whose primary language is American Sign Language (ASL) to communicate directly with agency staff about issues of discrimination they may be facing. EEOC information intake representatives who are fluent in ASL will be available to answer questions and guide callers through the process of filing a charge of discrimination using videophones.”

Adult, Cell, Face, Female, Girl, Happy

“Previously, individuals who were deaf and or hard of hearing relied on an interpreter using relay services when they contacted EEOC. This new system provides direct access to an EEOC employee who can answer the caller’s question in ASL over a videophone.”

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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]