EEOC REJECTS “LIP SERVICE” FOR THE DEAF/HOH (AN UPDATE)
There is not any breaking news here or newly-established legal precedent—and that is sad. This post is about yet another fed who requested a sign language interpreter for a last-minute meeting a manager called with employees. Rather than postpone the meeting to get an interpreter, management decided it was important to have it immediately. It told the employee it would hold the same meeting the next day when it could get an interpreter. But, it never did, and the employee filed charges. Shocked? We kind of are because too many employees seem to think there must be a long-running pattern of discrimination before they have a legitimate complaint. This employee proved once again that is not the case. A single incident can result in a discrimination judgment and money for the employee. Here is how EEOC held the law applied. (But also be sure to check out a new EEOC decision explaining when it will certify a class action on behalf of all deaf/HOH employees. That could be a very powerful tool for forcing agency change. See Tessa v. Perdue, Agriculture, EEOC No. 0720170021 (2017).
“We have previously held that ‘for a severely hearing impaired employee who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies or assignments, and for every disciplinary action so that the employee can understand what is occurring at any and every crucial time in his employment career, whether or not he asks for an interpreter.” (The emphasis was added by us)
EEOC rejected the agency’s argument that the October 11, 2014 service talk meeting was conducted at the last minute. While the Commission has not ruled out that some meetings can be urgently needed and justify holding without an interpreter, it expects the agency to make up for what the disabled employee lost. In this case, it said, “… the Agency’s tepid assurance to Complainant that a second service talk on October 12, 2014, would have an interpreter available was not backed by any action. The Agency asserts that it made the effort to secure interpreter services, despite the non-appearance on an interpreter. We find that under the circumstance of this case, the Agency’s actions provided mere ‘lip service’ to Complainant’s clear request for reasonable accommodation, and the Agency has not demonstrated it made good faith efforts to comply with that request.” In other words, the legal judgment turns on how diligently the agency worked to provide a reasonable accommodation.”
EEOC ordered that, “The Agency will immediately ensure that Complainant is provided with a qualified sign language interpreter when required during his employment, including at a minimum for safety talks, discussions on work procedures, policies or assignments, for performance evaluations and for every pre-disciplinary and disciplinary action so that the employee can understand what is occurring at any and every crucial time in the employee’s employment career.”
It also ordered the agency to report whether it disciplined the involved managers for their error and that they be sent to training on their reasonable accommodation obligation. Finally, it required the agency to determine how much money the employee should be paid in compensatory damages” for the difficultly he suffered. That might turn out to be as little as $1,000 or as much as $300,000.
Unions should have assertive outreach programs in place to inform the deaf/HOH employees in their unit and to assure them that if they want to push back they will have the entire union behind them. Pass them stories like this to bolster their confidence and knowledge of their rights. (See also “The Right to a Sign Language Interpreter,” and “Accommodating Almost Every Time Is Not Enough.) Check in with them from time to time to learn how they are being treated. Find someone in the union hierarchy who can sign or otherwise communicate with them in the manner they prefer. Don’t overlook the union’s right to file a class action grievance on behalf of all deaf/HOH employees. One union did and got each of those employees $3,000 to compensate for the harm they suffered because interpreters were not provided.
This case is titled Darius C. v. M. J. Brennan, USPS, EEOC Appeal No. 0120160004 (2016)
This was previously published in November 2016.