Fighting Employment Discrimination for People Who Stutter

Under the Newly Amended Americans with Disabilities Act

By William D. Parry, J.D., M.A., CF-SLP

Copyright © 2009 by William D. Parry

What This Workshop Is About The problem of employment discrimination against

people who stutter (PWS). An introduction to the Americans with Disabilities

Act of 1990 (ADA) and its applicability to PWS. Roadblocks that were imposed by the Supreme

Court regarding meeting the definition of “disabled.” How the new amendments to the ADA may improve

protections for PWS. Dealing with discrimination in employment

situations. Deciding whether to file a discrimination complaint,

and the procedures involved. Tips on handling job interviews for PWS. Q and A.

First, My Story Moderate-to-severe stutterer since age 4, but could

be very fluent when acting. Abandoned plans to become a psychiatrist after my

college Pre-Med Advisor ridiculed my stuttering, and I switched to being an English Major.

Law degree from the U. of Pennsylvania Law School in 1966, where I was a member of Law Review.

Rejected by law firms because of my stuttering. Briefly worked at a Phila. law firm before being laid

off. Legal editor for 5 years. Worked for a trial lawyer in a dead-end job for 12

years. Improved my speech thru self-help therapy in 1984.

My Story (cont’d) In 1985, founded Philadelphia Area Chapter of NSA,

which I led for 15 years. In 1985, hired by law firm as trial lawyer handling

personal injury litigation. Became partner in larger firm in 1989, before

starting own law practice in 1993. Wrote Understanding & Controlling Stuttering. Member of the NSA's Board of Directors and Chair

of its Advocacy Committee for 6 years. M.A. in Speech, Language & Hearing Science from

Temple U. in 2009. Now doing Clinical Fellowship as SLP, while still

practicing law.

Stuttering and Employment Discrimination In competing for employment or advancement,

people who stutter (PWS) often find themselves at a distinct disadvantage.

Many of us have languished for years in undesirable, low-level, or marginal jobs, while watching less-qualified fluent individuals move ahead in their careers.

Studies have shown that 85 percent of employers agreed that stuttering decreases a person's employability and opportunities for promotion.

Hurst, M.I. & Cooper, E.B., Employer attitudes toward stuttering, Journal of Fluency Disorders, 8, 1-12 (1983).

Stuttering and Employment Discrimination (cont’d)

Vocational rehabilitation counselors reported that stuttering was vocationally handicapping.

Hurst, M.I. & Cooper, E.B., Vocational rehabilitation counselors' attitudes toward stuttering, Journal of Fluency Disorders, 8, 13-27 (1983).

Surveys of people who stutter have reported high rates of unemployment, discrimination in attaining employment, and denial of promotions because of stuttering.

Opp, K.L., Hayden, P.A., & Cottrell, G.T., Stuttering and employment: A survey report, Annual Convention of ASHA, Boston, MA (1997).

Stuttering and Employment Discrimination (cont’d)

In another study: More than 70% of PWS agreed that stuttering

decreases one's chances of being hired or promoted.

More than 33% of PWS believed stuttering interferes with their job performance.

20% had actually turned down a job or promotion because of their stuttering.

Men and minorities were more likely to view stuttering as handicapping than were women and Caucasians.

Klein, J.F. & Hood, S.B., The impact of stuttering on employment opportunities and job performance, J. Fluency Disorders, 29, 255-273 (2004).

Stuttering and Employment Discrimination (cont’d)

Early in my legal career, I was openly rejected by law firms because of my stuttering, despite my academic qualifications.

During my years with the NSA, I have heard from PWS who: Tried to hide their stuttering on the job for

fear of being fired. Suffered harassment or unfavorable

evaluations by intolerant supervisors. Were denied promotions to supervisory

positions or jobs that involved speaking or dealing with the public.

Stuttering and Employment Discrimination (cont’d)

I’ve heard from PWS who were denied jobs (or even interviews), on grounds that the job required "excellent oral communications skills." Often this was simply because the job

occasionally involved answering the telephone or speaking to people.

One woman was even denied a job as a typist in a typing pool - on the grounds that employees were expected to take turns answering the telephone when the receptionist was on her lunch break.

Stuttering and Employment Discrimination (cont’d)

Most PWS are capable of adequate - and often very effective - oral communication, regardless of their disfluency.

However, if stuttering disqualifies them from every job that involves some speaking or use of the telephone, they will be excluded from vast areas of the job market - and particularly from the most desirable jobs.

The greatest obstacle to communication comes when we feel compelled to hide our stuttering out of fear of reprisal.

For employers to demand fluency as the price of one's job only creates a vicious spiral of stress and anxiety that makes stuttering worse.

Stuttering Stereotypes

PWS are subject to negative stereotypes that have significantly harmed their employment and promotion opportunities.

These stereotypes include the widely accepted impression that stutterers are nervous, shy, quiet, self-conscious, withdrawn, tense, anxious, fearful, reticent, and guarded.

See, e.g., Hurst, M. I., & Cooper, E. B., Employer attitudes toward stuttering, J. Fluency Disorders, 8, 1-12 (1983); Woods, C. L., & Williams, D. E., Speech clinicians' conception of boys and men who stutter, J. Speech & Hearing Disorders, 36, 225-234 (1971); Woods, C. L., & Williams, D. E., Traits attributed to stuttering and normally fluent males, J. Speech & Hearing Research, 19, 267-278 (1976).

Stuttering Stereotypes(cont’d) People often assume that PWS stutter for the same

reasons that cause occasional disfluency in non-stutterers – e.g., nervousness, uncertainty, emotional distress, etc.

Therefore, they assume that the PWS is experiencing the same things, but to a greater degree.

See, e.g., White, P. A., & Collins, S. R. C., Stereotype by inference: A possible explanation for the "stutterer" stereotype, J. Speech & Hearing Research, 27, 567-570 (1984).

One NSA member was denied a promotion by the U.S. Weather Service because his supervisor incorrectly assumed, on the basis of his stuttering, that he lacked the ability "to make rapid fire judgments, think quickly and demonstrate leadership ability."

Stuttering and Employment Discrimination (cont’d)

The occurrence and impact of discrimination may vary from person to person depending on a variety of factors - such as the severity of stuttering, the kind of work, and the marketability of the individual's other skills. Some stutterers say that they have never

encountered employment discrimination. Many people have achieved success despite

their stuttering – including jobs in business, law, medicine, science, literature, entertainment, and even politics.

Nevertheless, for persons not so fortunate, employment discrimination continues to be a problem with serious consequences.

Combating Stuttering Discrimination What can be done to combat stuttering

discrimination? First, each PWS can be his or her own advocate in the

battle against discrimination. Suggestions include:

Rooting out our own negative stereotypes and feelings of shame about stuttering;

Presenting our stuttering in a positive, open, and straightforward way, without trying to hide behind annoying and self-defeating avoidance behaviors; and

Educating employers and the public about the nature of stuttering.

Organizations like the NSA and the Stuttering Foundation of America have been active in educating the public.

Legal Protections forPersons with Disabilities

As a last resort, PWS may pursue legal remedies to challenge acts of discrimination.

In the U.S., a number of state and federal statutes now purport to outlaw discrimination against persons with handicaps or disabilities. These include:

The Americans with Disabilities Act of 1990 ("ADA"), a federal statute that applies to employers with 15 or more employees.

The Rehabilitation Act of 1973, which provides protection for handicapped individuals employed by federal agencies or employers receiving federal funds.

State and local anti-discrimination laws, which may apply to other employers.

Each statute has its own specific terms, applicability, and procedures, which must be followed precisely.

Should We CallStuttering a “Disability”?

Many PWS dislike being called "handicapped" or "disabled."

Of course, we know that stuttering need not be a handicap.

But the purpose of these laws is to protect us from discrimination by people who aren't so enlightened.

To qualify for legal protection, we must therefore be open and "up front" about our stuttering.

The worst mistake would be to try to hide your stuttering in a way that truly interferes with your job performance (such as by not talking, avoiding the phone, etc.).

This might give the employer a legitimate excuse for firing you - even if stuttering itself wouldn't be.

The Americans with Disabilities Act of 1990 (ADA)

Passed by Congress in 1990 (42 U.S.C. §§12101 et seq.). Most parts went into effect in 1992.

Title I prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in

job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of

employment.

Is Stuttering Coveredby the ADA?

The first question that must be addressed is whether or not a person’s stuttering qualifies as a "disability" under the ADA.

It is true that “stuttering” is not specifically mentioned in the Act.

The ADA does not list any specific conditions by name as "disabilities." Congress did not want to limit the scope of the

Act.

How “Disability” IsDefined in the ADA

Whether an individual's condition is a "disability" under the ADA depends on whether it comes within any one of three general categories: "(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual;

"(B) a record of such an impairment; or "(C) being regarded as having such an

impairment." 42 U.S.C. sec. 12102(2).

Regulatory Definitions

When originally passed, the ADA did not define "physical or mental impairment,“ “substantially limits,” or “major life activities.”

These terms were subsequently defined in federal regulations promulgated by the EEOC to include:

"physical or mental impairment" - among other things, "Any physiological disorder" or "condition" affecting "speech organs," or "any mental or psychological disorder" such as "organic brain syndrome, emotional or mental illness, and specific learning disabilities'' [29 C.F.R. sec. 1630.2(h)(1-2)].

"major life activities" – among other thing, "functions such as . . . speaking" [29 C.F.R. sec. 1630.2(i)].

Is Stuttering Covered as a “Disability”? (Cont’d)

Stuttering arguably fulfilled the definition of a "physiological disorder" or "condition" that affects the "speech organs" and that limits an individual's ability to participate in the "major life activity" of "speaking."

However, in order to come under definition (A), the individual had to prove that his stuttering was a "substantial" impairment. This had to be decided on a case-by-case

basis. While severe stuttering might be considered

a substantial impairment, mild stuttering probably would not.

Stuttering in theFederal Courts The question of whether PWS are entitled to legal

protection has been argued in the courts. A case used against PWS was Detko v. Blimpies

Restaurant, 924 F.Supp. 555 (S.D.N.Y. 1996). However, the Court did not hold that stuttering

could not qualify as a disability under the ADA. The Court dismissed plaintiff's complaint

because he simply alleged that he "stutters," without pleading additional facts to show that his stuttering came under one of the statutory definitions of "disability" set forth in the ADA.

Stuttering in theFederal Courts (cont’d)

Other cases were dismissed because plaintiffs failed to show that their own stuttering was a “substantial” impairment or that they were qualified for the jobs in question, or on technicalities. These decisions did not rule out the possibility

of stuttering discrimination cases in general. A number of stuttering discrimination cases

were successfully settled before trial, but these were not legal precedent because they did not result in published judicial opinions.

Stuttering in theFederal Courts (cont’d)

Andreson v. Fuddruckers, Inc., Civil Action No. 03-3294, 2004 WL 2931346 (D. Minn., Dec. 14, 2004), specifically held that stuttering could qualify as a disability under the ADA.

A restaurant worker filed an employment discrimination suit under the ADA, claiming that she had been fired because of her severe stuttering. 

The employer moved for dismissal on the grounds that she was not "disabled" within the meaning of the ADA.

The Court denied employer’s motion, holding that the employee could proceed with her claim based on stuttering. 

"The case law cited by Fuddruckers wherein previous courts have dealt with the issue of stuttering in the context of the ADA does not persuade the Court that Andresen's stuttering cannot, as a matter of law, constitute a disability. . . ." 

Must Be “Qualified” for Job The PWS must also prove that he is "qualified" to

perform the "essential functions of the employment position that such individual holds or desires" with or without reasonable accommodation.

The ADA states that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." ADA, section 12111(8).

The Big “Catch 22”

Therefore, when speaking is an essential job requirement, persons who stutter may find themselves in a "Catch 22" situation. If they prove they are "substantially impaired" in

speaking, they will not be "qualified" for the job. On the other hand, if they prove that they are

"qualified" to hold a speaking job, they will not be "substantially impaired,“ and therefore not protected against discrimination.

The “Regarded As” Option For this reason, persons who stutter may have a

better chance under definition (C). Although the person's stuttering might not in

itself "substantially limit" a major life activity under 42 U.S.C. sec. 12102(2)(A) of the ADA, that person might still have a "disability" under sec. 12102(2)(C) because he is "regarded as having such an impairment."

In other words, a PWS could argue that his stuttering does not prevent him from performing the essential speaking requirements of the job, but that the employer rejected him because of myths, fears, and stereotypes associated with stuttering.

Hostile Work Environment Courts have recognized the right to bring claims under

the ADA based on a “hostile work environment.” See, e.g., Fox v. General Motors Corp., 247 F.3d 169 (4th

Cir. 2001). An ADA plaintiff must prove the following to establish

a hostile work environment claim: He is a qualified individual with a disability; He was subjected to unwelcome harassment; The harassment was based on his disability; The harassment was sufficiently severe or pervasive to

alter a term, condition, or privilege of employment; and Some factual basis exists to impute liability for the

harassment to the employer (e.g., employer knew or should have known and failed to take remedial action).

Judicial Road Blocks When first enacted, the ADA looked like a

potentially powerful weapon against handicap discrimination.

Unfortunately, the definition of “disability” was interpreted very narrowly by the U.S. Supreme Court, severely reducing its effectiveness.

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).

The Court ignored the EEOC’s broad definition of “disability,” holding that the agency lacked authority to define the term.

As a result of these Supreme Court decisions, other federal appellate courts further restricted coverage under the ADA.

Judicial Road Blocks A study by the American Bar Association

revealed that plaintiffs prevailed in less than 10 per cent of the cases brought under the ADA.

Most cases were thrown out of court even before trial, usually on the grounds that the plaintiff did not meet the statutory definition of an "individual with a disability," and therefore was not covered by the Act.

Many of these court decisions, if allowed to stand, could have seriously undermined legal protections for people who stutter.

Judicial Road Blocks (cont’d)

In Sutton, the Supreme Court held that determination of whether a person’s impairment substantially limits a major life activity must be made with reference to measures that mitigate the person’s impairment, such as medication, corrective devices, or auxiliary aids.

As a result, lower appellate courts have held that persons with epilepsy, diabetes, or ADHD which is controlled by medication are not protected under the ADA.

Orr v. Wal-Mart Stores, 297 F.3d 720 (8th Cir. 2002); Mancini v. Union Pacific R.R., 98 Fed.Appx. 589 (9th Cir. 2004); Knapp v. Columbus, 192 Fed.Appx. 323 (6th Cir. 2006).

This interpretation could have disqualified PWS who use medication, devices like SpeechEasy, or fluency-enhancing techniques to reduce their stuttering.

Judicial Road Blocks (cont’d)

Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). Supreme Court held that “major life activity”

and “substantially limits” must be strictly interpreted.

“Substantially limits” was interpreted to mean “prevents or severely restricts.”

One Circuit Court held that a person who lost one arm was not disabled because he was still able to use his other arm.

Carr v. Publix Super Markets, 170 Fed.Appx. 57 (11th Cir. 2006).

This interpretation could have excluded all but the most severe stuttering from legal protection.

Judicial Road Blocks (cont’d)

Lower appellate courts have also disqualified persons who had learned to cope with their disabilities. For example, a person with muscular

dystrophy who had successfully learned to live and work with his disability was held not to be protected under the ADA.

McClure v. General Motors Corp., 75 Fed.Appx. 983 (5th Cir. 2003).

This interpretation could have disqualified PWS who have been successful in life despite their stuttering.

Judicial Road Blocks (cont’d)

Intermittent limitations excluded. Some courts held that conditions that

cause intermittent seizures (such as epilepsy) or sporadic limitations are not “disabilities.”

E.g., Corley v. Dept. of Veterans, 218 Fed.Appx. 727 (10th Cir. 2007).

Since stuttering is often sporadic, this interpretation could have excluded PWS who are fluent some of the time.

Judicial Road Blocks (cont’d)

In Sutton the Supreme Court also held: To establish coverage under the “regarded

as” definition, an employee must show not merely that the employer thought that he had an impairment, but he must also prove that the employer thought that he had an impairment that substantially limited a major life activity.

This would have required proof of what the employer subjectively believed about the impact of stuttering on a person’s life.

This interpretation would have made it practically impossible for PWS to establish a claim even under the “regarded as” definition.

ADA Amendments Act of 2008

ADA Amendments Act of 2008 (ADAAA) – Effective January 1, 2009. Was passed by Congress to reverse many of

the limitations imposed by the Supreme Court and other courts.

Re-established a broader definition of “disability.”

Also amends the Rehabilitation Act of 1973. Contains provisions that may strengthen

protections for PWS.

Broadened Definition of“Disability” under ADAAA

The ADAAA specifically repudiates the Supreme Court decisions in Sutton and Toyota that had narrowed the definition of “disability.”

The ADAAA states that: “The definition of disability . . . shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by this Act.”

Speaking as aMajor Life Activity

The ADAAA specifically defines “major life activity” as including “speaking.”

An impairment need only substantially limit a single major life activity to be considered a disability.

Under ADAAA guidelines, “substantially limits” may include restrictions that are less than “significant” or “severe.”

Mitigating Measures

In considering whether a person has a “disability,” it is generally not appropriate under ADAAA, to consider whether “mitigating measures” are available or used to lessen or eliminate the impact of the impairment.

Exceptions are ordinary eyeglasses and contact lenses. Specific mitigating measures not to be considered

include: Medication, prosthetic devices, reasonable

accommodations, and learned behavioral or adaptive neurological modifications.

Therefore, a PWS would not be disqualified simply because his stuttering is mitigated by means of medication, DAF/FAF devices, or fluency-enhancing strategies, etc.

Intermittent Limitations

Under ADAAA, an impairment that is episodic or in remission is a “disability” if it would substantially limit a major life activity when active.

Therefore, stuttering could still be considered a disability, even if the person is able to speak fluently some of the time.

“Regarded As” Clarified

Under the ADAAA, a person who asserts a “regarded as” claim is not required to show that the impairment is perceived to substantially limit a major life activity.

Person will be “regarded as” having an impairment if he is subject to discrimination because of an actual or perceived impairment, regardless of whether the impairment actually limits or is perceived to limit a major life activity.

Persons who only come under the “regarded as” definition are not entitled to “reasonable accommodation.”

Should You File a Discrimination Claim?

Discrimination cases are usually very hard to win, even for experienced attorneys, so they should not be undertaken haphazardly.

Because stuttering is such a complex and misunderstood disorder, stuttering discrimination cases must be carefully planned and prepared in order to avoid potential disaster.

Poorly prepared cases may result in unfavorable judicial opinions, which may then be followed by courts in other cases and seriously damage the rights of all persons who stutter.

Discrimination Complaint Procedures

First step: File a complaint with the federal Equal Employment Opportunity Commission ("EEOC") or comparable state agency, usually within 180 days after the discriminatory act.

300 days if the state has its own anti-discrimination law. Time limits vary under state statutes. (E.g., California’s

Fair Employment & Housing Act allows claims within one year.)

EEOC or state agency then investigates complaint and decides whether or not to take action.

Complainant can request a "right to sue" letter from the EEOC 180 days after the charge was filed.

After the letter is issued, the complainant then has 90 days in which to file a lawsuit against the employer in a U.S. District Court.

Burden of Proof Discrimination is easy to allege, but often very

difficult to prove. In disability discrimination cases under the

ADA, the plaintiff must first establish a prima facie case of discrimination. Plaintiff must show that:

Plaintiff has a disability, as defined by the ADA; Plaintiff is a qualified individual; and Plaintiff was subjected to unlawful discrimination

because of the disability. See, e.g., Davis v. Florida Power & Light Co., 205

F.3d 1301, 1305 (11th Cir. 2000).

Burden of Proof (cont’d)

The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action.

McDonnell Douglas Corp. v. Green, 411 U. S. 792, at 802 (1973); Pugh v. Attica, 259 F. 3d 619, 626 (7th Cir. 2001) (applying burden-shifting to an ADA claim).

If the employer meets this burden, the presumption of intentional discrimination disappears.

The plaintiff can still prove discrimination by offering evidence that the employer's explanation is a pretext.

See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 143 (2000).

Discrimination Remedies

A person who is successful in proving unlawful discrimination may be entitled to certain remedies, depending on the particular statute involved.

Under the ADA, remedies may include: hiring, reinstatement, or promotion, back pay and/or front pay, reasonable accommodation, other actions that will put the individual in the same

condition he or she would have been in but for the discrimination,

attorney's fees, expert witness fees, and court costs, other compensatory damages or punitive damages, if

the discrimination is found to be intentional or malicious.

Contact Information William D. Parry, Esquire, J.D., M.A., CF-

SLP Law office: 1608 Walnut Street, Suite 900,

Philadelphia, PA 19103 Office phone: 215-735-3500 E-mail: wdparry@aol.com

Websites: The Valsalva-Stuttering Network: www.valsalva.org

E-mail: valsalvastutter@aol.com Beating Stuttering Blocks: www.stutterblock.com Stuttering and the Law: www.stutterlaw.com