The EEOC and FedEx Continue Battle to Define Employer Requirements under the ADA

In 2014, the Equal Employment Opportunity Commission filed a class-action disability lawsuit against the multi-billion dollar business, FedEx Ground Package System, Inc.

FedEx Ground truck in front of a parked car.
FedEx Ground is facing EEOC discrimination charges for its treatment of people who are Deaf or Hard of Hearing. photo credit: torbakhopper fedex ground illegal deliveries (this episode actually lasted over five minutes but flickr only allows 90 second uploads) via photopin (license)

Two years later, the lawsuit is still underway after a judge denied the company’s motions to dismiss or strike it.

Court documents provide a rich source of learning about how the government views a business’ obligations to be Americans with Disabilities Act compliant.

The case comes behind another FedEx case concerning an employee who was Deaf.

In 2015, the National Association of the Deaf intervened in the lawsuit. Unlike a previous EEOC v. FedEx case, this time, a national Deaf advocacy group joined.

According to the association, they intervened on behalf of “two deaf women who worked for FedEx Ground without access to qualified sign language interpreters or other reasonable accommodations.”

In 2016, FedEx’s Motions to Dismiss and to Strike were dismissed by U.S. District Judge, Mark R. Hornak.

Picture shows a screen shot of someone using sign language in an ASL video on the EEOC website.Learn more about this current case in ASL.

Overview

In a 2014 press release, the EEOC said, “FedEx Ground failed to provide needed accommodations such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants. The shipping company also failed to provide such accommodations during staff, performance, and safety meetings.”

Female news broadcaster with image of Hurricane Matthew in the background.
As pictured, this news broadcast wouldn’t make any sense to the Deaf community. No interpreter for those who use ASL. No captions for those who are Hard of Hearing. The Deaf and Hard of Hearing community needs visual communication. photo credit: NASA Goddard Photo and Video NASA’s 3D view shows Hurricane Matthew’s intensity via photopin (license)

“FedEx Ground refused to provide needed equipment substitutions and modifications for deaf and hard-of-hearing package handlers, such as providing scanners that vibrate instead of beep and installing flashing safety lights on moving equipment,” according to the release.

Stop sign shows a person light in green and a person lit in red.
Just like the lights on this sign show it’s safe to cross the street, color changing lights can send visual signals to people who are Deaf or Hard of Hearing. photo credit: My Buffo Should I stay or should I go? via photopin (license)

Employees worked at facilities in Texas, Florida, Georgia, Pennsylvania, Colorado, Kansas, Illinois, Maryland, California, Connecticut, Iowa, Michigan, Minnesota, Oregon, Utah, and West Virginia.

After attempting to remedy the situation with FedEx, “The EEOC’s lawsuit arose as a result of 19 charges filed throughout the country citing discrimination against deaf and hard-of-hearing people by FedEx Ground,” according to the press release.

Failed resolution

“The agency consolidated these charges and conducted a nationwide systemic investigation of these violations. The EEOC filed its lawsuit in U.S. District Court for the District of Maryland, after first attempting to reach a pre-litigation settlement through its conciliation process.”

EEOC Philadelphia District Director Spencer H. Lewis, Jr, said in the release, “FedEx Ground failed to engage in an interactive process with deaf and hard-of-hearing package handlers and applicants to address their needs and to provide them with reasonable accommodations. That’s why we filed this lawsuit — to remedy alleged pervasive violations of the ADA on a national level.”

People sit around a room on several sofas.
Employee engagement requires effective communication. Sometimes that requires accommodations. Trust employees to know what they need. photo credit: TEDxSKE (Lebanon) TEDxSKE salon: 08.09.16 via photopin (license)

A lose/lose scenario

EEOC Regional Attorney Debra M. Lawrence said, “…FedEx Ground should have provided effective accommodations to enable people with hearing difficulties to obtain workplace information that is disseminated in meetings and in training sessions. … by failing to do so, FedEx Ground has marginalized disabled workers and hindered job performance. This is a ‘lose/lose scenario.'”

Button says Failure is always an option.
Not preparing ahead to meet the needs of employees can lead to the business and employees losing opportunity. photo credit: Howdy, I’m H. Michael Karshis Failure : @sharkthang : Quote : Prisma : Wave via photopin (license)

This case supports part of the EEOC’s Strategic Enforcement Plan’s six national priorities: eliminating barriers in recruitment and hiring.

Equal Employment Opportunity Commission v. FedEx Ground Package System, Inc.

Blue bag with money symbol on it tied with a rope.
Discrimination lawsuits can be costly and inconvenient. photo credit: dolphinsdock Money Bag in Blue via photopin (license)

According to court documents, The EEOC “seeks:

  • a permanent injunction to prevent FedEx Ground from engaging in disability discrimination;
  • an order directing FedEx Ground to implement policies, practices, and programs to provide equal employment opportunities and reasonable accommodations for aggrieved individuals;
  • back pay;
  • compensation for past and future pecuniary and non-pecuniary losses;
  • instatement of aggrieved individuals or front pay;
  • and punitive damages.”

No procedure = operating procedure

According to court documents, “The EEOC pleads that ‘FedEx has not implemented a corporate-wide procedure’ for accommodating deaf or hard-of-hearing individuals.”

When “faced with a legal duty to seek reasonable accommodations, an employer’s complete and uniform failure to do so can fairly be conceptualized as a standard operating procedure of unlawful conduct.”

What happens when the EEOC goes fishing

Man on beach in sunset gathers his large fishing net.
The judge compares the EEOC to someone who has gone fishing and already cast their net–so they can reap the benefits. photo credit: Prabhu B Doss Networking. via photopin (license)

According to court documents regarding FedEx’s attempt to dismiss or strike the case, “EEOC has provided, and at oral argument FedEx Ground acknowledged possessing, a list of 168 named individuals that are the subject of this suit. And while the EEOC generally ‘may not use discovery.. .as a fishing expedition to uncover more violations,’ here the EEOC has already cast its net.”

Previously, the EEOC had placed a form on their website information requesting leads about FedEx Ground employees who had been denied accommodations during hiring or at work. In stark contrast to FedEx Ground’s training videos, the EEOC’s video is in American Sign Language.

“If some other aggrieved individuals–those meeting the statutory criteria for the claim as pled–are added to the haul . . . sometimes permissible fishing expeditions legitimately catch fish,” the judge said.

Many fish swirl around in the ocean.
If your business policies don’t respect people with all abilities, there are likely many fish for the EEOC to catch. photo credit: forum.linvoyage.com Fish soup IMG_1172s via photopin (license)

FedEx Ground complained that defending themselves against so many was unreasonable.

“FedEx Ground will not necessarily suffer impermissible prejudice. The EEOC’s central claim is based on an alleged failure to engage in an interactive process in order to give disabled individuals a statutorily-mandated reasonable accommodation. If it turns out that FedEx Ground indeed failed to do that, all individuals who were unlawfully discriminated against could be entitled to relief…”

What FedEx Ground failed to understand about the EEOC

According to court documents, “…The EEOC has significant discretion to investigate discrimination claims and … to litigate on behalf of a potential group of aggrieved people” and can “maintain class action suits even where it does not attempt to conciliate on behalf of each member or potential member of the class)” if they have informed the company that some people have suffered certain discriminatory conditions.

FedEx Ground’s statement

In this report, FedEx Ground said, “We value our deaf and hard of hearing employees, and we strive to give them, like all our employees, every opportunity to be successful — including working with them to provide individualized and reasonable accommodations.”

“We have cooperated with the EEOC throughout their investigation and are disappointed that the EEOC was not willing to engage in legitimate, good-faith discussions to conciliate and resolve these allegations. We are confident that we have complied with the law and intend to vigorously contest the EEOC’s unfounded allegations,” they said.

When should accommodations have been provided?

Many lifejackets are restrained by cords.
Ensure that your employees swim, not sink, by making all meetings and trainings accessible to people with all abilities. photo credit: tompagenet IMG_6282 via photopin (license)

According to a 3PlayMedia report, “..FedEx Ground blatantly violated the ADA by failing to provide American Sign Language (ASL) interpreters or closed captioned training videos in the following situations:

  • Mandatory initial tour of the facilities,
  • New-hire orientation for applicants,
  • Staff meetings,
  • Performance meetings, and
  • Safety meetings.”

From the perspective of people with deafness and hearing loss

Eisenberg & Baum, LLP of New York, ASL-fluent attorneys, addressed the case. “If you are deaf or hard-of-hearing, it can sometimes be hard to get your employer to address your needs. Lack of reasonable accommodations can make your work life miserable, and make it harder for you to do your job.”

What must happen before an ADA lawsuit

“Before an ADA lawsuit can start, the employer must also have taken some ‘adverse employment action’ against the deaf or hard-of-hearing employee. This could be refusal to hire, failure to promote, firing, or discrimination in shifts, positions, or hours. It could also include harassment, if the behavior is serious enough to create a hostile work environment.”

Reasonable Accommodations can be used to complete work duties

Man looks at camera as he holds a phone handset while another person on video waits for him to continue speaking.
People who are Deaf or Hard of Hearing have been using videophones and captioned phones for many years now. photo credit: Ian Broyles i invented a video phone to the past via photopin (license)

“For example, a deaf woman may not be able to answer telephone calls. However, she may request a text telephone, voice carry-over telephone, or a captioned telephone, which would allow her to perform the essential work of responding to phone calls. This would be a reasonable accommodation under the Americans with Disabilities Act unless it was unduly burdensome on the employer.”

Positioning your business to be ADA compliant

Older man in a boat on the water pulling up a fishing net.
Liken the EEOC to the Old Man and the Sea. They are experienced and despite all challenges, they can catch big fish. photo credit: Emanuele Cardinali The Old Man and the Sea via photopin (license)

First, understand that the EEOC is a good fisherman.

According to its website, since the start of FY 2011, the commission has filed more than 200 disability discrimination lawsuits recovering $52,000,000. “The Commission secured this relief through jury verdicts, appellate court victories, court-entered consent decrees, and other litigation-related resolutions.”

Lawsuits include all “segments and sectors of the workforce” concerning a large variety of disabilities.”

Click here to review a list of EEOC cases.

How to avoid the EEOC fishing at your business

To avoid competing against the EEOC protecting the rights of your employees, you must fish better from your own pond. Like most people who fish well, prepare ahead of time.

The secret to good conflict resolution is fishing well with catch and release

Woman in boat holds a large fish she apparently just caught.
How well do you fish? Are you soliciting employee feedback regarding accommodations? photo credit: Kris Krug Antonia Wilson – Salish Sea Charters – Winter Salmon Fishing – Galiano Island via photopin (license)
  • Cast your line. Accessible hiring, training, and meetings. Have public policies that encourage complaints and management interaction.
  • Use the right bait. Avoid any practices or lack of policies that allow discrimination to take place. This includes training any supervisory personnel about supporting all abilities from the first week of hire. Build a nurturing workplace environment. The wrong kind of bait may lose your catch and the EEOC won’t use the wrong kind of bait.
  • Reel in your fish. When complaints are received, call in teams of people with similar abilities and ask them what can be done, what are potential cost-saving short cuts, and about other suggestions.
  • Let them go and multiply. Address needed changes, have follow-up dialogues, and encourage open door policies to discuss future needs. If this encourages more employees with similar needs to apply, it’s because you have strong policies that support your employees. Applicant metrics are a good standard for measurement of policy effectiveness.

    Two large fishing nets are hung in the water beneath a colorful sky.
    When you prepare ahead for success, you’ll cast out your net and gather new clients and funding sources. photo credit: Christopher Crouzet Cu Đê River, Da Nang via photopin (license)
  • Cast a new net. Reap the benefits of encouraging clients with similar abilities to support your efforts. Promote within the disability network, which has a strong word-of-mouth campaign. Enjoy the bounty!

Learn more about the EEOC

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available at its website.

FedEx and EEOC’s Battle to Define an Employer’s Responsibilities under the ADA

In 2001, a FedEx Corporation employee filed a complaint against his employer with the federal Equal Employment Opportunity Commission, or the EEOC.

This began a long-term legal battle between FedEx and the EEOC that extended through two major lawsuits.

This post addresses the first lawsuit.

Picture shows a screen shot of someone using sign language in an ASL video on the EEOC website.Click to learn more about the second lawsuit in ASL here.

Employers can learn much from the story of how the situation escalated, and how higher courts determined employer responsibility.

The employee had minimal work-related accommodations needs, but several factors contributed to a situation where courts determined that FedEx had to pay $8,000 in compensatory damages and $100,000 in punitive damages. The maximum penalty was $300,000.

If FedEx had avoided this scenario with best practices, the company could have saved $108,000 for damages, additional lawyer fees, and seven years in courts.

Shows picture of a judge's gavel on top of a file folder with many papers.
Litigation is an expensive and time-consuming way of resolving employee conflicts that can be addressed more effectively internally. photo credit: weiss_paarz_photos Gavel – Courtroom and Gavel via photopin (license)

Worse, the lawsuit raised awareness with their employees, which potentially led to a second, larger lawsuit years later.

Perhaps FedEx was lucky. The information they didn’t provide their employee could have killed him.

Equal Employment Opportunity Commission, Plaintiff-Appellee v. Federal Express Corporation, d/b/a FedEX Express, Defendant-Appellant, decided January 2008.

Background

The first lawsuit was brought by the EEOC after Ronald Lockhart of College Park, Md. filed a complaint.

Lockhart was a full-time college student and part-time package handler at FedEx between 2000-2003. He worked at FedEx’s Baltimore-Washington International Airport facility during the night shift.

Picture shows two FedEx planes on an airport runway.
FedEx is one of several of the nation’s mail carriers. photo credit: fordsbasement Federal Express Planes at LAX via photopin (license)

According to court documents, Lockhart had been “profoundly deaf since his birth in 1959. He is unable to either speak or read lips, but is fluent in American Sign Language (“ASL”), which is his primary language.”

While Lockhart didn’t need accommodations for package handling, he needed them for meetings.

“Lockhart made repeated requests for an ASL interpreter and other accommodations, so that he could understand what occurred at employee meetings and training sessions,” according to court documents.

Title I of the ADA

According to court documents, “Title I of the ADA prohibits discriminatory acts and omissions that abrogate the employment rights of disabled people, including the failure of an employer to make reasonable accommodations for an applicant or an employee’s disability. (defining ‘discriminate’ as, inter alia, the failure to make ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]’).”

Closed doors to communication access

Lockhart’s direct supervisors made efforts to acquire accommodations, but ultimately didn’t provide them.

Problems for Lockhart began at the door. A FedEx supervisor denied Lockhart an interpreter for his job interview, and according to court documents, Lockhart had to bring a friend to interpret for him.

Lockhart supplied his own interpreter because he “really wanted the job,” and because he “felt as if [he] had no other choice.”

When the Senior Operations Manager for FedEx at the BWI Ramp, Pat Hanratty, learned that one of his managers had hired someone requiring an interpreter, he “ask[ed Thompson, Lockhart’s initial direct supervisor] why” he had done so.

As Senior Operations Manager, Hanratty was responsible for ensuring that personnel matters at the FedEx-BWI Ramp were ADA compliant.

Hanratty was fluent in ADA matters. He:

  • knew FedEx’s ADA compliance policy,
  • had received ADA training from FedEx, and
  • was familiar with the ADA’s requirement that employers make reasonable accommodations for their disabled employees.

Failure to implement ADA policy

According to court documents, Hanratty failed to ensure that:

  • FedEx’s ADA compliance policy was implemented, and
  • Lockhart’s supervisor received ADA training from FedEx, even though he’d requested it.

Since Lockhart’s supervisor didn’t understand how to accommodate someone with deafness, when Lockhart requested accommodations, he didn’t receive them.

Lockhart had requested:

  • complete notes from the daily briefings, and
  • ASL translation and closed-captioning assistance at monthly meetings.

What Lockhart received:

  • no ASL interpretation or closed-captioning for two years,
  • no information about meeting times and dates,
  • some closed-captioned videos, and
  • no ASL translations of live presentations.

    Captions on bottom of TV screen showing news about Oprah and Australia.
    Watching TV without sound or captions is a quick way to teach why captions are important to those with hearing loss or deafness. photo credit: NICOLE CHETTLE via photopin (license)

Attempting accommodations

Victor Cofield, a FedEx-BWI Ramp Operations Manager, was Lockhart’s direct supervisor for most of the period addressed in the lawsuit.

Cofield made efforts to locate accommodations, such as:

  • asking Hanratty for ADA training,
  • requesting more information from other senior personnel,
  • communicating with Lockhart via note writing, and
  • partially attempting to locate a qualified interpreter.

The provided accommodations didn’t respect Lockhart’s abilities, and though Cofield tried to assist Lockhart, he failed on the follow-through.

Picture of a wastebasket with balls of paper trash inside.
If Lockhart didn’t bring his own notebook, his supervisor would sometimes get paper from the trash to write notes on with Lockhart. photo credit: Jeff Hester 101/365 Trashed via photopin (license)

For example, Lockhart took a notepad to communicate with his supervisor, Cofield, but if he forgot to bring one, Cofield said, “We would find a piece of paper somewhere, … out of a trash can, off the floor or something, and write [notes].”

Pulling paper out of the trash to communicate with someone sends the wrong message.

Sometimes, Cofield used an uncertified interpreter that was another FedEx employee to interpret.

Picture of man with hands in the air out to the side, as if gesturing, I don't know.
What Lockhart’s supervisor failed to understand was that an ASL student may not be qualified to interpret, especially if they know little more than the alphabet. photo credit: danielfoster437 Disagreement via photopin (license)

“Lockhart had difficulty comprehending this employee’s ASL translations because, although the employee could use the ASL alphabet to spell English words,” according to court documents, “he was not fluent in the ASL language.”

Picture of the Twin Towers skyscrapers smoking on 9/11.
When the surprise attacks of 9/11 occurred, Lockhart was concerned about safety, as many Americans were. photo credit: RTreadway 37136665303 via photopin (license)

Post-9/11 Training Exclusion

After the terrorist attacks of Sept. 11, 2001, when several planes were targeted to crash into strategic sites, including one that had been headed toward nearby Washington, D.C., security measures increased nationwide.

A week later, according to Wikipedia, “Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting 17 others.”

FedEx managers at BWI held security issues meetings, covering subjects such as potential anthrax exposure.

Lockhart didn’t have an ASL interpreter or meeting notes, and couldn’t therefore effectively participate in the security meetings.

Two people's hands over a graph and a notebook, taking notes.
What would a meeting be like with charts and outlines and no explanations? Since Lockhart couldn’t hear any of the meeting content, he could only rely upon what he saw–if and when he was informed there was a meeting. photo credit: iComputer Denver Business Computer and IT Support via photopin (license)
Stack of manila envelopes.
Since Lockhart didn’t have accessible training, after 9/11, we had no way to know precautions to take to avoid anthrax exposure. photo credit: bourgeoisbee 11/15/07 via photopin (license)

“[M]y co-workers started to feel very concerned for me,” Lockhart testified, “because there was so much information that I wasn’t getting, and they were concerned for my safety.”

Lack of awareness about deafness

FedEx also had company training and according to court documents, Lockhart completed 24 FedEx training courses — “including courses on how to avoid workplace violence, how to recognize and interpret hazard labels on packages, and how to safely handle dangerous materials.”

Company records showed Lockhart performed satisfactorily for all the training sessions.

For computerized summative tests, “FedEx would direct a ‘team leader’ to sit with Lockhart at his computer and answer test questions for him if he made incorrect answers.”

“As Lockhart recalled, ‘the team leader would … move[] me out of the way and start[] taking the test for me.'”

Picture of part of a computer monitor and a keyboard.
Sometimes other FedEx personnel would take required tests for Lockhart rather than provide him an interpreter so he could take tests for himself.

Had Lockhart received an interpreter while taking tests, he could have clarified the language and taken the test for himself.

Lockhart was also fired by FedEx, while the case was still in courts.

Despite a clear failure to provide effective communication to Lockhart, FedEx fought the EEOC in courts.

What the court instructed the jury: accommodations

About an employee requesting accommodations, the jury was instructed that:

although a disabled employee possesses a general responsibility to inform his employer that such accommodations are necessary, “the need for a request may be excused altogether when a known disability interferes with an employee’s ability to make a request.” If that happens, “the employer must make a reasonable effort to understand what [the] needs are.”

What the court instructed the jury: awarding punitive damages

For awarding punitive damages, the jury was told those could be awarded if the jury found for the EEOC, and established from a “preponderance of evidence” that:

  1. “A higher management official of FedEx personally acted with malice or reckless indifference to Mr. Lockhart’s federally-protected rights;” and,
  2. “FedEx itself had not acted in good faith in an attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace.”

What the court instructed the jury: good faith

The court advised the jury about what is good-faith, when managerial employees’ acts “were contrary to the employer’s own good faith efforts to comply with the law by implementing policies and programs designed to prevent such unlawful discrimination in the workplace.”

Cartoon of a jury from Revolutionary period.
Would a jury find that your company is making effort to abide by the ADA with its policies and oversight? photo credit: The British Library Image taken from page 102 of ‘Humorous Poems … With a preface by A. Ainger, and … illustrations by C. E. Brock. L.P’ via photopin (license)

What the court instructed the jury: bad faith

As far as determining bad faith, the jury was instructed that a “party that … delays the interactive process is not acting in good faith,” and that a “party who fails to communicate, by way of initiation or response, may also be acting in bad faith.”

Black and white photo shows an old looking sign that says, The deadline for complaints was yesterday.
Part of a healthy business communication system is having clear procedures for addressing employee grievances, not just receiving them. photo credit: blondinrikard Sign of the day via photopin (license)

Reckless Indifference to support punitive damages

To gain punitive damages, the EEOC “relied on a theory of reckless indifference to prove its claim.”

Read sign with white letters reads, It is far better to follow well than to lead indifferently.
Knowing the law and not taking action presents problems, particularly with business leadership. Management is held to higher standard because they have the authority and power to initiate action. photo credit: Brett Jordan Support Line (1 of 2) via photopin (license)

To justify punitive damages based on reckless indifference, sufficient evidence for the jury must be provided in these four areas:

(1) The employer’s decision maker discriminates in the face of a perceived risk that the decision will violate federal law;
(2) The decision maker is a principal or serves the employer in a managerial capacity;
(3) The decision maker acts within the scope of his employment in making the challenged decision; and
(4) The employer fails to engage in good-faith efforts to comply with the law.

An Employee Manual and Grievance Procedures Aren’t Enough

According to court documents, “FedEx contends that adoption of its ADA compliance policy, as set forth in the People Manual (providing that reasonable accommodations should be made for disabled employees), in conjunction with its internal grievance policy for handling employee complaints, established that it had acted in good faith to comply with the ADA.”

Picture of a meeting taking place. Topic isn't visible.
Company training minimizes risks. It’s an essential part of a businesses’ insurance policy against lawsuits. photo credit: OREALC/UNESCO Santiago Reunión Sub regional “Estrategias para la inclusión de la Gestión de Riesgos de Desastres en el sector Educativo” via photopin (license)

The court ruled, “Unfortunately for FedEx, the mere existence of an ADA compliance policy will not alone insulate an employer from punitive damages liability. Rather, in order to avoid liability for the discriminatory acts of one of its management officials, an employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation.”

Fighting the $100,000 in punitive damages

FedEx opposed the punitive damage of $100,000, based on the acts not passing a reprehensibility test, according to court documents:

  • 1) whether the harm done was physical as opposed to economic;
  • (2) whether the conduct involved indifference to the health or safety of others;
  • (3) whether the victim was financially vulnerable;
  • (4) whether the conduct involved repeated actions or was isolated; and
  • (5) whether the harm suffered by the plaintiff resulted from conduct that was known or suspected to be unlawful.

The court determined that Lockhart’s supervisors “were familiar with the mandate of the ADA and perceived the risk that their conduct was unlawful,” and that Lockhart “missed updates about important subjects,” including handling dangerous materials and anthrax.

This justified the damages awarded to Lockhart.

FedEx’s request for a hearing at the Supreme Court

The Southeast ADA Center reported, “Federal Express filed a Petition for Writ of Certiorari with the United States Supreme Court on April 22, 2008 to determine whether the Fourth Circuit used an improper standard in allowing an award of punitive damages. On October 6, 2008, the Supreme Court denied the petition for review by Federal Express Corporation. Therefore, the punitive damages award of $100,000, upheld by the Fourth Circuit’s unanimous decision, prevails.”

Lessons learned about law

Man in green shirt sits among and audience with hand to chin in deep thought.
What can we do to avoid lawsuits and keep prevent employee grievances, or if they occur, handle them internally? photo credit: Biocat, BioRegió de Catalunya Lessons Learned_21.05.10 via photopin (license)

“This verdict sends victims and their employers a big message,” said EEOC Regional Attorney Jacqueline McNair, according to an EEOC newsroom release. “Employers must provide reasonable accommodations for qualified individuals with disabilities. It is the employer’s responsibility to demonstrate that it is committed to fully adhere to the requirements of the ADA on behalf of disabled employees, and that they are not to be treated like second-class citizens.”

Lessons learned about policies and procedures

FedEx had a partial defense of following the ADA:

  • an ADA compliance policy, and,
  • an internal grievance policy for handling employee complaints.
Chart that shows a flow of management policies, including compliance.
Compliance with company policy is essential, and planning and training raise awareness about these policies. photo credit: bryanmmathers (wapisasa) Workforce Pipeline driven by Open Badges via photopin (license)

Failure to comply with their own policies could be addressed by:

  • establishing regular ADA-compliance meetings for managers and supervisors,
  • disability awareness meetings for full staff, organized in cooperation with individuals who have a disability,
  • publicly and internally posting accommodations requests information,
  • publicly and internally posting grievance policies for employee complaints,
  • having a designated employee to receive grievances and address them, with their contact information affixed to publicly displayed and internally provided documents,
  • keeping grievance dialogues open until they are resolved, with a focus on learning what failed and solving that too,
  • consulting government agencies for information concerning new disabilities they wish to accommodate,
  • selecting partner providers ahead of time for Braille, sign language, live or closed captions, etc. and including partners in business-wide publications and public postings.

    Drawing of a tree with a quote next to it, Good judgment comes from experience, and a lot of that comes from bad judgment.-Will Rogers
    A good grievance procedure can help leaders determine policy problems and training needs for management and staff. photo credit: Ken Whytock Quotation: Good judgment comes from experience, and a lot of that…” via photopin (license)

To create procedures and documents, companies could hire contractors to draft initial publications and posters, as well as for managerial and staff training.

Once policies and procedures are created, businesses have greater protection from their employees making uninformed mistakes of judgment, and maintenance of the policies and procedures should require limited effort.

Unfortunately, FedEx would face many more employees for their next EEOC lawsuit, which will be covered in the next post.

 

 

 

 

 

Houston Deaf Grassroots Movement National Corner Rally this Thursday

The Houston Deaf Grassroots Movement will have a National Corner Rally this Thursday, Oct. 20, at Houston City Hall. This is part of a national effort to raise awareness about Deaf issues.

The three goals of the national Deaf Grassroots Movement are: Communication Access, Education, and Employment.

Street painting of sign language hand showing beginning of alphabet, A, B, C, D...
When people don’t know sign language or use captions, Deaf and Hard of Hearing community members need accommodations to have equal rights. photo credit: Hindrik S put your hand … via photopin (license)

Deaf Grassroots members will hold events at 85 cities across the nation, including:

According to Deaf YouVideo, the National Association of the Deaf met together with the Deaf Grassroots Movement to plan events for this Oct. 20.

Howard A. Rosenbaum of the National Association of the Deaf signed, “DGM and the NAD work together and support each other. Allow me to explain how. The NAD has always met with the federal government to discuss various issues including education, employment, and access. While such discussions are productive, sometimes we get nowhere. Thanks to DGM’s movement and making noise about our needs, the federal government reached out the NAD recognizing their actions. This helps the NAD continue the dialogue we want to have with the federal government. I am very appreciative of the work DGM has done to support the rights of deaf and hard of hearing people.”

“October 20th is a very important day! You can get involved by looking for the DGM Facebook page in your state, and find out details about October 20th. You can join for an hour, a few hours, or all day! Your time contributed to this movement will have an impact across the country!”

Map showing location of City Hall at 901 Bagby Street, Houston, Texas 77002The Houston event will be from 10 a.m.-6 p.m. at 901 Bagby Street, Houston, Texas 77002.

“There is a serious need to fight for the Deaf rights of communication, education, for jobs and many other issues of discrimination. The Deaf community must continue to fight for these rights and the best way to do so is to make the public aware of the issues of discrimination,” according to the event’s listing at the Deaf Network of Texas.

Participants will meet at corner intersections. Members of the Houston Deaf community are encouraged to attend to bring attention to their rights.

According to the event listing, “There is power in numbers and you will want to attend with your friends.”

To learn more, contact Darla Conner at dconner@cbfl.cc,  at 713-491-2381VP, or at 713-974-4621voice/tty.

Click here to let event organizers know you wish to attend.

NAD and DGM Links:

Follow @National Association of the Deaf:
Facebook – https://facebook.com/nad
GooglePlus – https://plus.google.com/nad
Twitter – https://twitter.com/nad
YouTube – https://youtube.com/nadvlogs
Website – http://nad.org

Follow @Deaf Grassroots Movement:
Facebook – https://www.facebook.com/events/deafgrassrootsmovement
Official Website – http://www.tdgm2015.org

Deaf Grassroots Movement Hashtags:
Facebook – https://facebook.com/hashtag/dgm
Instagram – https://instagram.com/explore/tags/dgm
Twitter – https://twitter.com/hashtag/dgm

Related Deaf Deaf Grassroots Movement:
Deaf Grassroots Movement – National Deaf Rally
Deaf Grassroots Movement Nationwide Rally
Deaf Protest at White House in Washington DC
Deaf Protest At The White House 2015 Live Video

Interpreting for Hurricane Matthew to Avoid Repeating Hurricane Andrew’s Deaf Community Disaster

When it was over sea, Hurricane Matthew was a Category 5 hurricane, with the potential to do as much damage as the Category 5 Hurricane Andrew that hit Florida in 1992 with 165 mph winds–and needlessly took Deaf lives.

Picture of a swirling hurricane in the ocean heading toward Florida.
Hurricane Andrew before it took an unexpected turn and struck South Florida. Only one TV station agreed to have an interpreter inform the Deaf Community of the unexpected change–a difference that may have cost Deaf lives. photo credit: Key West Wedding Photography Remembering Hurricane Andrew – 1992 via photopin (license)

Andrew took 65 people’s lives and warnings from local news stations warned that Hurricane Matthew was as serious a threat to the Eastern U.S. coastline.

For the Florida Deaf community, reporting and interpreting about Hurricane Matthew was a time for news stations to redeem themselves and not fail them as they had during Hurricane Andrew, when the Deaf community relied on reports from only one TV station that would accept and interpreter–and no captions at all.

For Hurricane Matthew, not only did news stations use interpreters for Hurricane news along the East Coast, many used Certified Deaf Interpreters too, bringing praise and surprise.

Hurricane Matthew–A Big Difference

Hurricane over the ocean near Florida.
Hurricane Matthew over the Bahamas. Wikipedia reported the hurricane caused 1,027 fatalities. This time, the media took a better approach at informing the Deaf community. photo credit: Official U.S. Navy Imagery Hurricane Matthew pass over the Bahamas. via photopin (license)

In 2016, with Hurricane Matthew, things started differently than they did during Hurricane Andrew.

For Hurricane Matthew, the Federal Communications Commission was available 24 hours a day, assisting with emergency communication providers.

The State reports that South Carolina Gov. Nikki Haley set the stage for public officials sharing communications with the Deaf Community, by providing a nationally Certified Deaf Interpreter, Jason Hurdich.

One viewer posted, “The sign language interpreter is the best part of Nikki Haley’s press conference. His facial expressions are 🔥🔥🔥.”

Channel 10 of the Miami area, once again a champion for Deaf communications during hurricanes, broadcasted interpreted news, this time with Miami Mayor Carlos Gimenez. A graphic artist found the sign language interpreter so fascinating that she shared his video on her website.

Gym with hundreds of people laying on the floor in sleeping bags.
This U.S. Navy image shows preparation in a shelter in Cuba before Hurricane Matthew hit the island. Without proper communication, Deaf community members wouldn’t have known the shelter was available. photo credit: Official U.S. Navy Imagery Service members attached to Joint Task Force Guantanamo Bay take shelter inside Denich Gym before Hurricane Matthew hits Naval Station Guantanamo Bay. via photopin (license)

On their Facebook page, Pasco County Schools of Land O’ Lakes, Florida, provided a sign language interpreter, and added Hurricane Matthew emergency communications in Spanish.

The Broward County Emergency Operations Center of South Florida used a Deaf interpreter, with a hearing interpreter signing for him.

The Miami Herald reported that the Deaf interpreter, because American Sign Language is his native language, added more meaning for audience members who are Deaf.

“I process it and put it into an art form or language that is clear to the deaf and hard-of-hearing community,” interpreter Andrew Altmann said. “It’s like a puzzle and I have to put all the pieces together and present it to our community.”

The mayor’s Facebook Fan Kim Black said, “Marty, thank you for publicly supporting the interpreter! You always go above & beyond to support those who work behind the scenes. The Deaf and Hard of Hearing community is fortunate to have leaders like you. You’re a very special person. Stay safe through the storm.

West Palm Beach, Florida’s WPTV, introduced their interpreter on the channel’s website, saying she would interpret for their viewers who are Deaf or Hard of Hearing.

There was a time though, that the Deaf community fended for itself with no information–and Deaf people died.

Hurricane Andrew: a Deaf Catastrophe

In 1992, before Hurricane Andrew hit South Florida, no one was certain if the storm would strike South Florida. To make matters worse, there had been a few hurricane scares earlier that year and nothing had happened.

According to “Lessons from Hurricane Andrew” by Rick Eyerdam, in the 1990’s, news stations used a “crawler,” which provided a written message at the bottom of the screen to inform people with deafness or hearing loss what was happening and what to do when closed captioning and interpreters weren’t signing.

According to the a Deaf services agency representing 30,000 clients then, when the news stations changed the Hurricane Watch to a Hurricane Warning, they stopped using a crawler.

Female news broadcaster with image of Hurricane Matthew in the background.
As pictured, this news broadcast wouldn’t make any sense to the Deaf community. No interpreter for those who use ASL. No captions for those who are Hard of Hearing. The Deaf and Hard of Hearing community needs visual communication. photo credit: NASA Goddard Photo and Video NASA’s 3D view shows Hurricane Matthew’s intensity via photopin (license)

There were no captions, no crawler, no interpreters.

The equivalent for a hearing person is a TV that is turned off and no radio communications. Nothing.

The South Florida Deaf community had no idea the hurricane now had the highest probability of striking the area where they lived.

When the Hurricane Andrew Warnings were issued to the hearing population, most people went to the stores to buy food and water.

During hurricanes, water supplies can be contaminated, so the stores sold out. Home Depot ran out of generators, since many feared the 90+ degree heat with no air conditioning or power. Stores ran out of wood panels and duct tape to cover windows and keep them from shattering inside their homes.

Everyone went except the Deaf community, which didn’t know because local news stations, according to Tyrone Kennedy, stopped using the crawler to provide words at the bottom of the screen, because emergency messages were long and difficult to reduce to writing.

“Once it changed from the watch to warning, we lost it all. The deaf population had no knowledge of what was going on. They missed out completely,” Kennedy said.

When the Hurricane Warning was issued, Kennedy and Deaf Services called the National Hurricane Center to offer interpreters for hurricane announcements.

He never got called back.

The television stations refused interpreters. Finally, one television station, Channel 10, agreed to have an interpreter on the news.

“By the time those people who would have relied on this information, if it came sooner, found (the station and got the information) by then it was too late. The stores were all empty. There were no supplies left,” Kennedy said.

They also didn’t have enough time to properly evacuate to a Florida city higher north.

After the storm, they couldn’t contact people who were Deaf by phone, since TTYs needed electricity. Fortunately, they forwarded all calls to one apartment with electricity and sent out volunteers with replacement batteries for their TTYs.

After Hurricane Andrew, according to the report, “the deaf community has discussed the effectiveness of closed captioning in the emergency environment and is now recommended all messages be sent in open captioning…”

According to “Deaf People and Hurricanes,” by Elizabeth Sadler, several Deaf Floridians died during Hurricane Andrew.

While it’s too late for those who lost their lives during Hurricane Andrew, at least the Deaf Community received greater emergency communications and acceptance, far beyond anything they dreamed of long ago in 1992.

Learn Sign Language for Hurricane

Broward County’s emergency interpreter, Andrew Altmann, demonstrates how to sign “hurricane.”

 

 

 

Houston Deaf Community to Meet with METRO

The Houston Center for Independent Living will host “A Time To Speak Up/Advocate and be heard METROLIFT Customers.”

Some customers who are Deaf or Hard of Hearing are having difficulty getting picked up on time and communicating with dispatch about it. This could lead to customers waiting in unsafe situations. photo credit: hvandjez msp2016-236 via photopin (license)
Some customers who are Deaf or Hard of Hearing are having difficulty getting picked up on time and communicating with dispatch about it. This could lead to customers waiting in unsafe situations. photo credit: hvandjez msp2016-236 via photopin (license)

The Community Engagement Meeting with METRO Staff will be on Tuesday, Oct. 18 from 12:30 p.m.-2:00 p.m. at the Bayland Community Center, 6400 Bissonnet, Houston, Texas 77074.

The meeting topics that will be discussed with METRO staff include:

  • METROLift same-day policy
  • Feeder Service Pilot Program
  • Pedestrian-Accessible Review (PAR) Program

Since refreshments will be served and METRO will provide ASL interpreters, contact HCIL staff to let them know you wish to attend at 713.974.4621 Voice/TTY or 713-491-2381 V.P.

In a Deaf Network of Texas post, Robert Yost shared how the Houston Deaf and Hard of Hearing Community is impacted by METROLift services, including:

  • late pick ups,
  • difficulty reaching the dispatcher when pick ups are late, and
  • driver’s favoring hearing consumers and people who are Deaf/Hard of Hearing being dropped off last.

Anonymously Autistic – One of Many Invisible Women on The Spectrum

Wanted to share this unique look at women and abilities.

Anonymously Autistic

I am one of many anonymous invisible Autistic women. We are invisible or anonymous for many reasons.

Some of us are anonymous because we fear the world is not ready to change the way it sees Autistic people. There is something wrong with the world when a common response to an Autistic person trying to come out is “You’re nothing like Rain Man!”

Of course I most of us are not like a fictional movie character. Most of us are unique individuals. That is like me comparing all Neurotypicals to the cast of Beverly Hills 90210. Not all NT’s are hyper social just like not all Aspies are like Raymond Babbitt.

Some of us are anonymous because we like our privacy. We may tell our closest friends and relatives but find it hard to talk about our Autism with people we are not close to. Those of us who…

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