“Deaf Culture” Expert to Testify at Trial? Judge Allows EEOC to Test the Limits

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

In the last couple of years, pursuant to the Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission (EEOC) has prosecuted at least 12 lawsuits on behalf of deaf or hard-of-hearing employees or job applicants. And, within the last 10 years, the U.S. Department of Justice has litigated and/or settled close to 40 cases involving the failure to adequately accommodate deaf or hard-of-hearing individuals under Titles II or III of the ADA. A jury trial in one such case brought by the EEOC started this week in Sacramento, California. The case includes a claim that, while the employer previously provided an American Sign Language (ASL) interpreter for the employee at certain times during the workday, a new manager provided only “fingerspelling” (i.e., the actual spelling of words, letter by letter) instead of ASL for communication.

The ADA requires employers to reasonably accommodate a deaf applicant’s or employee’s disability so that the employee can perform the essential functions of the job (unless doing so would be an undue hardship for the employer). It also requires “public accommodations” to provide effective communication through “auxiliary aids and services” to deaf individuals if necessary to accommodate the disability (unless doing so would result in a fundamental alteration of the goods or services offered or involve a significant difficulty or expense). Public accommodations include governmental units or private businesses or organizations offering goods or services to the public, including retail stores, restaurants, hotels, theaters, hospitals, banks, casinos, and other entities. Therefore, providing a deaf interpreter at certain times during an employment or sales or service interaction usually will be required during important or key conversations when requested by a deaf person.

Accordingly, employers and public accommodations must know their legal obligations to accommodate deaf individuals—before they are confronted with a situation or request in real-time.

In the case currently underway, the EEOC—which in the past has been aggressive with its use of expert witnesses—proposed an expert witness to testify in support of a deaf employee’s failure to accommodate claim. The witness is a licensed psychologist who completed a postdoctoral residency in outpatient mental health for the deaf and hard of hearing and serves as a court-appointed expert and advocate for deaf and nonverbal clients. The employer sought to exclude this witness from testifying at trial—despite her education and background—because she could not demonstrate expertise with the deaf culture in Iran, where the employee in the case grew up communicating with Iranian Sign Language (ISL) and in the written language of Farsi. Despite its objections before trial, the employer failed to offer any evidence or an opposing expert witness to demonstrate that material differences exist between the deaf cultures of Iran and the United States. 

Due to the lack of evidence to convince the judge that the two countries’ deaf cultures were significantly different, the expert witness will be allowed to testify during the trial. But it is a clear wake-up call for employers and public accommodations employing or serving deaf individuals, customers, patients, clients, and students when a judge issues a decision finding that “expert testimony may be admissible as ‘background material, when cultures or locations would be foreign to a jury,’” and that “most laypersons have little or no first-hand experience with the Deaf community.” (Notably, even the term “deaf” is a source of debate. The National Association of the Deaf prefers the lowercase word “deaf” to refer to the physical condition of not being able to hear, and “Deaf” with an uppercase “D” to refer to a group of deaf people who share a language—namely, American Sign Language—and a culture.)

Therefore, the judge will allow the expert witness to testify about the specific accommodations that would allow the employee to perform the tasks outlined in her job description and about the differences between ASL and fingerspelling. As the expert witness explained in her report, deaf people often share values such as “collectivism,” communicate visually and physically (often involving touching), use facial expressions that often are misinterpreted by hearing people, and use nodding and other gestures—not to convey agreement or understanding—but as nonverbal equivalents of “filler language,” such as “I see,” “mmm hmmm,” or “uh huh.”

Also, the expert concluded, fingerspelling is not equivalent to ASL or ISL, even though sign language incorporates fingerspelling into some of its signs and gestures. This raises a key issue for employers and businesses accommodating deaf individuals. If an employee or patron requests an ASL interpreter, that may not be the same as a fingerspelling interpreter (or looking up the ASL alphabet online and spelling words to a deaf person). Of course, an individual may specifically request a fingerspelling interpreter instead of an ASL interpreter.

This ruling could have far-reaching implications. If employees or patrons can enlist an expert to talk about their culture or foreign language capabilities, then employers and public accommodations must do their homework to understand different cultures or languages before making a decision about whether to provide an interpreter or otherwise accommodate an employee or patron. If you are at all uncertain about your obligations when responding to request for a deaf (or other) interpreter, it may be best to check with your legal counsel, a disability access consultant, or a cultural consultant.

Stay tuned. We will continue to cover this case and will provide an update when the trial is over.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.