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

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

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.

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