Deaf employee? Do you know how to reasonably accommodate?
Although the employer agreed to provide a live interpreter at large meetings, the employee claimed that this was not done.
After the deaf employee was terminated, she sued her Florida employer for disability discrimination, failure to accommodate, and retaliation. After a three year litigation battle, she had a jury trial and in the summer of 2018 Florida jurors decided that the employer failed to reasonably accommodate the deaf employee, though they found the company did not discriminate or retaliate against her. The jury awarded $750,000 for emotional pain and anguish and $25,000 in punitive damages. D’onofrio v. Costco Wholesale, #0:15-cv-62065-wjz, (S.D. Fla.)
A deaf employee was hired and worked for 23 years without requesting any accommodations because she could communicate by reading lips. After a new manager was hired, he would mumble and cover his mouth when he spoke, making lip-reading almost impossible.
When the deaf employee asked him to write down what he was saying, she claims that he refused. After complaining to Human Resources (HR) and higher-ups at the store, she eventually resorted to contacting the company’s CEO directly.
Her letter to the CEO stated that she had been employed for 23 years and “have never been treated with such disrespect and discrimination due to my disability.”
Afterwards, the company held a training and sensitivity session to show managers how to work with deaf employees. But the deaf employee was written up for being “too loud” five times in a six week period. She was also suspended three times and placed in employee counseling, where a video phone was used. The employer installed video phones to link the deaf employee with interpretive services, but the employee claimed that the phones did not function properly at larger meetings with multiple conversations.
At trial the company explained that she was fired because she could not control her temper. The company also argued that it had accommodated her by installing two video phones and insisted that the deaf employee refused to use them. The Florida business also explained that it conducted sensitivity training, which demonstrated it had taken her complaints seriously.
At trial the employee introduced evidence that her supervisor did not receive the same disability sensitivity training as other workers. Her lawyers argued that this led to the impression she was being insubordinate, instead of understanding the effect of her disability. The deaf employee said she couldn't control the volume of her voice, the video phone only worked when only one person was speaking, and one of her managers missed the sensitivity training, where he would have learned that when deaf people yell, it is not because they are angry.
This recent Florida case demonstrates that Florida employers need to take seriously their obligations to accommodate disabled workers. Also, this case shows employers that if an employee misses a training, that training should be offered at a later date so that there is not a gap in training.
Florida employers are reminded that one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the EEOC to address emerging and developing issues in equal employment law, including issues involving the ADA.
If you need any assistance in handling a disabled worker or a request for an accommodation concerning your Florida business, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
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