Two groups have created a variety of useful materials about communication disorders that are free to use and distribute.
To raise awareness about communication disorders, the National Institute on Deafness and Other Communication Disorders and the American Speech-Language-Hearing Association observe Better Hearing and Speech Month each May.
This month, they are holding a social media contest and providing an inforgraphic and a quiz about hearing loss, as well as other communication disorder information in press releases, information sheets, posters, and more.
According to the institute’s website, 48 million Americans have a form of communication disorder, while 37.5 million of us have hearing loss–that’s 15 percent of Americans.
Currently, the institute supports research for promoting accessible health care and urges people who think they have hearing loss to have their hearing tested.
Since only 25 percent of Americans who could benefit from hearing aids have used them, there are potentially people who might want them who haven’t had access to them, or who may need them for safety or work-related issues.
The American Speech-Language-Hearing Association is promoting a social media contest to raise awareness. The association will award points for sharing information on social media and issue prizes for those earning the most points. Prizes will include Amazon gift cards and association promotional materials.
Learn what people with communication disorders, audiologists, speech-language pathologists are doing to raise awareness on this interactive, international map.
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.
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.
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.
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.
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.
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.
“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.”
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.
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.
“[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.'”
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:
“A higher management official of FedEx personally acted with malice or reckless indifference to Mr. Lockhart’s federally-protected rights;” and,
“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.”
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.”
Reckless Indifference to support punitive damages
To gain punitive damages, the EEOC “relied on a theory of reckless indifference to prove its claim.”
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.”
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
“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.
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.
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.