Lessons Learned: (1) Do Not Base Employment Decisions on Stereotypes; (2) Use Objective Evidence to Individually Assess an Applicant’s Ability to Perform the Essential Functions of the Job; and (3) Provide Reasonable Accommodations

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Patricia Tsipras

March 21, 2024

Early last year, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance entitled Hearing Disabilities in the Workplace and the Americans with Disabilities Act.  The guidance explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities.  Specifically, the guidance explains (1) when an employer may ask an applicant or employee questions about a hearing condition and how it should handle voluntary disclosures of such conditions; (2) the types of reasonable accommodations that applicants or employees with hearing disabilities may need; (3) how an employer should address safety concerns about applicants and employees with hearing disabilities; and (4) how an employer can guard against harassment of an employee because of a hearing, or any other, disability.

The EEOC issued this guidance over a year ago.  So why are we highlighting it now?  Well, given the number of lawsuits that the EEOC has filed over the last several months on behalf of deaf applicants or employees, it appears that employers need to give the guidance another read.

• On February 27, 2024, the EEOC announced that Voyant Beauty, LLC will pay $75,000 and provide other relief[1] to settle a disability discrimination claim. The EEOC alleged that Voyant terminated an employee on her first day of work upon learning that she is deaf.  Despite the fact that the employee was qualified for the job and could have performed its essential functions with or without accommodation, Voyant allegedly assumed that, because she is deaf, the employee could not safely work as a production worker.  The case is EEOC v. Voyant Beauty, LLC, No. 1:23-cv-014023 (N.D.Ill.)
• On February 14, 2024, the EEOC announced that Tech Mahindra, a technology company, will pay $255,000 and provide other relief[2] to settle a disability discrimination claim. The EEOC alleged that a deaf applicant provided a sign-language interpreter during an interview for an automation engineer position.  When the company realized that the applicant was deaf and using an interpreter, it ended the interview.  The company then allegedly sent an email to the applicant, stating, “Thank you for your time today.  It is unfortunate that we can’t proceed with your profile.  While you have the perfect skill set for this role it would be a challenge having an interrupter [sic] on-site.”  The case is EEOC v. Tech Mahindra (Americas), Inc., 6:23-cv-06397 (W.D.N.Y.).
• On February 8, 2024, the EEOC announced that a jury awarded $1.675 million in a disability discrimination case against McLane Northeast, a distribution company. The jury found that the company refused to interview a deaf candidate in whom the company had interest once the company learned that the candidate was disabled.  The jury found that the company further violated the ADA when it refused to hire that same candidate for two entry-level warehouse jobs for which she applied.  The case is EEOC v. McLane/Eastern, Inc. d/b/a/ McLane Northeast, No. 5:20-cv-01628 (N.D.N.Y.).
• On November 29, 2023, the EEOC announced that Digital Arbitrade, Inc., doing business as Cloudbeds, a remote technology company, will pay $150,000 and provide other relief[3] to resolve a disability discrimination claim. The lawsuit alleged that, during its hiring process, Cloudbeds failed to provide an accommodation to a well-qualified candidate in IT administration who is deaf and uses American Sign Language to communicate.  Cloudbeds terminated his candidacy on the basis that verbal communication and hearing were job requirements for the position in a remote setting.  The case is EEOC v. Digital Arbitrage, Inc. d/b/a Cloudbeds, No. 1:23-cv-11856 (D. Mass.).
• On September 1, 2023, the EEOC announced that a jury returned a verdict of over $36 million in a disability discrimination case against Werner Trucking. The jury found that the trucking company failed to hire and failed to accommodate an applicant, who is deaf, for a truck driving job.  The EEOC presented evidence that the applicant applied to work at Werner after completing training at Roadmaster, a Werner-owned truck driving school, and obtaining his commercial driver’s license.  The applicant also obtained from the U.S. Department of Transporta­tion’s Federal Motor Carrier Safety Administration an exemption from the hearing regulation for the operation of a commercial motor vehicle.  After the applicant applied, Werner’s Vice President of Safety told him that the company would not hire him because he could not hear.  The Vice President of Safety testified at trial that Werner continues to deny employment opportunities to deaf drivers.  The case is EEOC v. Drivers Management, LLC and Werner Enterprises, Inc., No. 8:18-cv-00462 (D. Neb.).

In addition to these settlements and verdicts, the EEOC has commenced at least three lawsuits in the last six months alleging disability discrimination against deaf applicants or employees.

• On September 26, 2023, the EEOC announced that it sued Alliance Ground International, a cargo logistics and handling company, for allegedly refusing to hire deaf job applicants and destroying job application records in violation of federal law. The case is EEOC v. Alliance Ground International LLC, No. 1:23-cv-14302 (N.D. Ill.).
• Also on September 26, 2023, the EEOC announced that is sued a nonprofit, Didlake, Inc. – a government contractor that provides janitorial and maintenance employees to federal worksites – for disability discrimination because it failed to provide reasonable accommodations, including American Sign Language interpreters, for safety meetings.[4] The case is EEOC v. Didlake, Inc., No. 8:23-cv-02618) (D. Md.).

• On September 22, 2023, the EEOC announced that it sued United Parcel Service (UPS) for disability discrimination for alleging maintaining a policy excluding deaf and hearing-impaired individuals from driver positions of vehicles weighing more than 10,000 pounds, even though the Department of Transportation had authorized the practice. The case is EEOC v. United Parcel Service, 1:23-cv-14021 (N.D. Ill.).

Employers:  Do not base your employment decisions on stereotypes about a disability.  Instead, use objective evidence to individually assess an applicant’s or an employee’s ability to safely perform the essential functions of a job.  Absent undue hardship, you have a duty to provide reasonable accommodations, and that duty extends to the interview process as well.

*Special thanks to Lisa Chapman, our Paralegal, for her contributions to this article. 

This newsletter is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.

[1] Voyant also will provide training to relevant management employees on federal laws prohibiting disability discrimination and will report to the EEOC on its hiring of disabled applicants for the duration of the consent decree that resolved the lawsuit.

[2] The consent decree resolving the litigation enjoins Tech Mahindra from discriminating on the basis of deafness in all phases of employment, including hiring; requires the company to create anti-discrimination policies and complaint procedures; directs the company to train its employees involved in hiring and supervision in all aspects of the ADA; and requires the company to hire an ADA coordinator to review requests for reasonable accommodation.

[3] Under the terms of the three-year consent decree that resolved the lawsuit, in addition to the monetary payment, Cloudbeds will update the company’s reasonable accommodation policy and annual training for management and human resource employees about discrimination law.  It also will issue an annual executive video message on the company’s commitment to ensuring that people who are deaf and hard of hearing are provided reasonable accommodations.  The company’s human resource personnel also will complete an online training focused on integrating deaf employees into the workplace, and Cloudbeds will designate one human resources team member to complete additional training on assistive technologies that deaf or hard of hearing employees or applicants may use to communicate in the workplace.

[4] Didlake also allegedly violated the ADA by maintaining a policy of terminating employees who requested medical leave but did not qualify for leave under the Family and Medical Leave Act (FMLA).