In Florida, can you assume that a deaf person could not perform the job? Is that discrimination?

A deaf applicant applied for a position of valet attendant. A company interviewed him twice, in Miami, Florida. For his first interview, the company gave the applicant a perfunctory meeting, while the non-deaf candidates had lengthier, in-depth interviews.

During his second interview, the interviewer initially refused to accommodate the deaf applicant’s request to conduct the interview in writing. Although the deaf applicant affirmed his ability to do the valet attendant job and explained his abilities, the interviewer abruptly concluded the interview, noting that the deaf applicant had communication difficulties in his speech and would not be able to hear a car behind him.

The company subsequently informed the deaf applicant that he was “not suitable for the job” and later hired a non-deaf candidate instead.

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The deaf applicant filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) in Miami. The EEOC determined that the employer violated the Americans with Disabilities Act. The EEOC attempted to settle the matter, but did not reach an agreement that was acceptable to the EEOC.

The EEOC then sued the Florida business, alleging that the company violated the discrimination law by refusing to hire a deaf applicant for a valet attendant position based on the assumption that a deaf person could not perform the essential functions of the job rather than conduct an individualized assessment of his abilities. See, EEOC v. USA Parking System, Inc., Case No.1:18-cv-23984) in U.S. District Court for the Southern District of Florida.

In general, failure to hire because of a disability and failure to conduct an individual assessment of the disabled individuals’ ability to perform the job violates the Americans with Disabilities Act (ADA).

Recently, the company settled the case by agreeing to pay $150,000 to settle the disability discrimination lawsuit.

In addition to this significant amount of monetary relief, the Florida business is now forced to:

affirmatively recruit applicants who are deaf and hearing-impaired;
add TTY capability to its discrimination hotline for the use of deaf and hearing-impaired applicants and employees;
change the essential qualifications of the valet attendant position to make clear that the job can be performed by anyone who can communicate effectively with customers, whether that communication is verbal or written;
train its workforce on disability discrimination through annual management and employee training across all of its locations in Miami-Dade and Broward Counties; and
report to the EEOC about any complaints of disability discrimination made by employees or job applicants.

These non-monetary parts of the settlement are significant. Florida employers should understand that this case demonstrates that if they screw up the hiring process, the EEOC may require as part of a settlement that the Florida employer actually take steps to affirmatively recruit people from the protected classification. In this case, the South Florida business must actively seek to recruit deaf people. Think about that. The employer will have to find communities of where these individuals are located and target those populations when they are hiring.

During this case, EEOC spokesmen in Miami stated that the ADA requires that people with disabilities be evaluated on their ability to perform the essential functions of the job-not on stereotypes or appearances. Also, that a Florida employer cannot assume an otherwise qualified candidate is incapable of performing the job based on an applicant’s disability without assessing whether the candidate can do the job with or without a reasonable accommodation. Also, that “deaf individuals too often face discrimination at the interview stage which denies them even the opportunity to be considered for employment.” Finally, that disabled individuals “are entitled to a fair opportunity to work under the ADA, and that includes a fair hiring process. Individuals with disabilities must be evaluated on whether they can perform the essential functions of the job, not on stereotypes or assumptions.”

This case reminds Florida business owners that the EEOC in Florida is focusing in its Strategic Enforcement Plan (SEP) on protecting vulnerable workers and eliminating barriers in recruitment and hiring.

If you have any questions or concerns about the hiring or recruiting process, do not hesitate to contact our law office by email or call us at 1-772-465-5111.

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