By Trevor Finneman
In an emerging trend in employment disability rights cases, there has been a sizeable uptick in discrimination cases involving Deaf and hard-of-hearing (D/HoH) job applicants over the past few years. For example, we’ve seen a number of potential employers rejecting job applicants immediately after they request an accommodation for a scheduled interview. This trend is echoed by the increase in recent court filings and reported settlements. Even the Equal Employment Opportunity Commission (EEOC) has worked to settle a handful of charges alleging discrimination against Deaf and hard-of-hearing job applicants.
In one of my ongoing cases, a national big-box retail chain selected our client, who is Deaf, for an interview after he applied online. He was selected for an interview based on his qualifications and past experience in similar jobs. When the hiring manager called the applicant to schedule an interview, my client explained that he was Deaf and would need an American Sign Language (ASL) interpreter for the interview. The store manager then abruptly ended the conversation and refused to interview him. Our client received a rejection letter via email a few days later. This exact scenario played out in another case brought by the EEOC against a convenience store chain and resulted in a favorable settlement for the job applicant.
In another employment discrimination case that I’m currently litigating, a qualified Deaf applicant arrived at a scheduled interview with his own ASL interpreter. The hiring manager, who did not previously know the applicant was Deaf, refused to conduct the interview and indicated in writing that he would not consider the applicant for the position.
Similarly, the EEOC recently settled an employment claim with Guidewire Software, Inc., a Bay Area software publisher. According to the EEOC, Guidewire invited an applicant to participate in a phone interview after reviewing the application and resume that she submitted online. When the applicant requested an in-person interview as an accommodation because she is not able to clearly hear sounds via telephone or computer, Guidewire never contacted her again. These cases are part of a larger trend of screening out D/HoH job applicants during the hiring process because of their disability.
We’ve also seen employers terminate longtime employees once they request accommodation for new, age-related hearing loss. These terminations are often preceded by an unexpected negative performance evaluation. These older, disabled employees are typically replaced with lower-paid hires who do not need accommodations. This trend may reflect both an aging workforce—where employees are working longer than before—and employers looking to reduce payroll costs.
Trends in court filings often lag significantly behind real-time events such as employment discrimination and will evolve as employers increasingly transition to online recruitment and application processes. We have yet to fully see how the Coronavirus pandemic economic devastation and shift to remote work will impact employment law trends relating to disability discrimination, but we will be watching for emerging trends.
Finally, an important practical note: Employment lawsuits generally have short timelines for filing. If you believe that you have experienced discrimination as an applicant or employee, contact an attorney as soon as possible.
Trevor Finneman is an HLAA-CA Board Member, elected in January, 2022. He is an attorney with the University of California Office of the President, where he advises on disability and education issues. Previously, Trevor spent a decade litigating disability and employment law cases, primarily representing Deaf and hard-of-hearing clients.
