EEOC Loses Claim Brought on Behalf of Fired Deaf Employee

By | July 12th, 2012 | General

The EEOC lost a claim brought against the The Picture People, who fired an employee who is profoundly deaf because she could not orally communicate with customers. Ms. Chrysler was hired by The Picture People during the holiday season to be a “performer” — an individual who does customer intake, sales, portrait photography, and lab work. The individual who hired her had previous success with a deaf employee in that position; however, that employee could read lips and speak and Ms. Chrysler could not.

The first snag in the employment relationship was Ms. Chrysler’s request for an interpreter for orientation. Ultimately and after a three week delay, she found her own interpreter and was able to go through orientation. However, soon after this, the store had a training session on improving photography quality and sales, but Ms. Chrysler was not provided an interpreter (although she apparently asked for one). The trainer found that Ms. Chrysler’s written communications, gestures, etc., were cumbersome and impractical for the position and Ms. Chrysler was reassigned solely to the lab.

After the holiday season concluded and business naturally slowed, the hours of the performers were either cut or the performers were terminated. Ms. Chrysler complained loudly when her hours were cut. Store management raised issues with her complaints, as well as performance issues such as coloring with pencils instead of working and refusing to take legally required rest breaks. She was formally reprimanded for these deficiencies, including for becoming “angry” and “threaten[ing] to bring a grievance” for not having her hours increased. She stopped being placed on the schedule and was ultimately terminated.

The EEOC brought a claim of alleged disability discrimination. The Court of Appeals found the dispositive question was whether Ms. Chrysler was qualified for the position, with or without reasonable accommodation. In decided that she was not qualified for the position (even though she had been hired for it), the Court found that verbal communication skills were an essential function of the performer position and that there were no reasonable accommodations that could be made to enable Ms. Chrysler to meet this essential function. Important for employers to recognize here is that the Court performed a very specific analysis of the job functions of the performer before concluding that oral communication skills were essential. It looked at whether written communication and gestures could be a substitute but found that they could not because of the short attention span of most of the subjects (frequently small children), the need to establish rapport and address customer concerns to sell more photo packages, among other things. Because eliminating an essential function and/or providing an interpreter full-time (as opposed to strictly training and other events, during which an interpreter is often required to be provided if the employer can function without one to do the “essential” parts of his/her job), are not “reasonable” accommodations, the Court found that there was nothing the employer could have done to accommodate Ms. Chrysler’s inability to perform her job. And while the failure to provide an interpreter for training meetings, etc., could have been a violation, the Court found that it would only be a violation if Ms. Chrysler had actually been qualified for her position in the first place.

This case also addresses some interesting legal issues, such as what evidence must be disregarded on summary judgment, and what is direct (versus circumstantial) evidence of discrimination and/or retaliation. From an employer’s perspective, however, the key things to take away from this case are (1) the importance of really thinking through and keeping up to date a job description — in this case the Picture People had listed “strong verbal communication skills” as a job qualification; and (2) making a case-by-case determination as to whether an individual can perform the essential functions (rather than enacting a general policy). Recall that in this case, Ms. Chrsyler was hired because of a successful experience with another deaf performer. However, it appears that their skills were different, in that the other performer was able to communicate orally (despite her disability), while Ms. Chrysler was not.

Employers Legal Resource Center can assist in drafting and reviewing job descriptions to ensure identification of essential job functions and related physical and mental requirements. We also can assist in reviewing and making recommendations with respect to requests for accommodation, and providing counsel in the difficult situation that arises when deciding to terminate someone who has threatened to, or is may bring a claim of discrimination. Contact us at 405-702-9797.

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