As I’ve mentioned, Aunt SuperTam says when I say “probably” I mean “definitely.”
These posts are designed to answer the most frequently asked questions I get from both interpreters and the Deaf Community; specifically the answers everyone should already know but rarely do!
Now. I know this blog is aimed at interpreters… but it’s vital for interpreters to know how the ADA, 504, IDEA… work; because these are the waters of the pool we all swim in each day. That and Rule 11. Read Rule 11.
So. If a person who is Deaf requests an interpreter what happens next?
(I mean of course what should happen next, according to law and policy, which is not always the same as what actually does happen.)
So what should happen if the request is made to the boss or at work (assuming the business is obligated to follow Title I of the ADA or Section 504) the employer then has an obligation to engage in a “meaningful dialogue.”
This dialogue is a legally required discussion to determine: if an accommodation is needed; if the accommodation would be reasonable; and, if it would not create an undue hardship (parenthetical digression time! Title I of the ADA uses the words “undue hardship” to mean the same thing that Title II and III call an “undue burden.” Same meaning, slightly different words. Why? Well, I have heard AN explanation… I’m not sure it’s THE explaination. Regardless of why- that is a story for another time). An undue hardship/burden does not mean “expensive” or even “very expensive.” In the context of employment it requires an extensive analysis. Many employers seem to think it means “if it costs us money we don’t have to” but that is just not so.
That being said, the laws as written don’t require the employer to provide an interpreter; only “effective communication.” Even effective communication is only required if the communication to be accommodated is for something that is considered to be an “essential function” of the job (getting hired is usually considered an essential function but, according to the 11th Circuit getting fired might not be). The employer is given a lot of leeway to determine what is an essential function and what is not. If there is a written job description courts give it a lot of deference. But if the function was never mentioned before the Deaf person showed up (suddenly the job requires telephone skills, but that has never been listed as a requirement until now…) the EEOC and the courts get very suspicious.
If a person who is Deaf has to file a complaint with an administrative agency like the EEOC (a necessary step before court*) the Deaf employee only has to show that it likely discrimination occurred and A) the function was essential; B) the employee requested and accommodation; C) the employer did not provide it; and D) the lack of effective communication had a detrimental impact on the employee.
Once this quite low threshold is met the burden shifts to the employer to show there was a legitimate business reason for their actions that was not discriminatory (burden shifting or the McDonnell-Douglas rule). Once that threshold is met the burden shifts back to the employee to prove that the business reason the employer stated was not legitimate but was just an excuse for discrimination (it was a “pretext”). The courts and administrative agencies tend to give a person who is Deaf’s request for an interpreter with a great deal of weight. This tendency to accept the person who is Deaf requesting an interpreter at face value, if they ask for one it is likely they need one, is somewhat unique the Title I (it is not so with Title III).
In a perfect world the Deaf employee asks for an interpreter, then the boss and the Deaf employee meet, they hammer out when accommodations would be required (what kind of thing requires and interpreter and what could be handled with notes or, honestly, with just pointing), a means to schedule interpreters for essential functions is agreed upon, and everyone goes back to work.
The world is generally not perfect.
Many employers don’t know their obligations. Many Deaf employees don’t know their rights or how to enforce them.
So, when should a Deaf employee request an interpreter? Many are reluctant to ask for one at the interview stage (a little hint, a person who is Deaf does not have to mention that they need an accommodation until they are asked to interview. The EEOC and Courts are verrrry suspicious of companies who “disinvite” people who are Deaf to interview for a job after a request for an interpreter.)
If a person who is Deaf already has the job then they should request accommodation when things are going good; in the honeymoon phase after they are hired. Asking for an accommodation always goes over best if it’s not in response to a problem, but you can point out to the boss that the company can prevent problems and invest in the development of an amazing employee by removing or reducing barriers to communication!
The employee who is Deaf will normally get some push back. For example the boss will say, “you’re doing fine! We communicate fine.” I have found the best response to that is “thank you. I would like to keep it this way. Please consider my request and I would ask you to document this discussion in the file so we can refer to it later if we need to. I am trying to set up a forward thinking plan to avoid problems that might disrupt productivity. As a person who is Deaf, I want to be the best employee you’ve ever had. Part of how I can do they is by preventing an issue before it starts, so I am going to ask that my proposal and the information on contacting interpreters just stay in my file for future reference.”
These steps apply if you are working for a private company or the government (except the States, Title I doesn’t generally apply to States, only 504 applies to States. Long story. Do I really want to tell it now? Sigh. Ok).
If the Constitution does not specifically give the Federal Government authority to do something then that authority is reserved for the States (10th Amendment). So Congress cannot pass laws unless the Constitution gives it the specific authority over that thing. Read the Constitution allllll you want it never even says the words Deaf or disability. So how can Congress pass something like the ADA? Congress has to get its authority from somewhere.
There is a second problem I should mention. It’s called Sovereign Immunity (connected to the 11th Amendment). This comes from a principle held over from the English. It’s says “you can’t sue the king without the king’s permission.” The 11th Amendment has been interpreted to say “you can’t sue the State without the State’s permission (that is not what the text of 11th Amendment says however… don’t get me started…). The State actually gives permission more often than you’d think. If the State doesn’t give permission congress can get around the 11th Amendment/sovereign immunity barrier because the 14th amendment gives them the authority to do so (remember? 10th Amendment?) IF (oy always with the if) there is a history of discrimination and the law congress passes using the 14th Amendment is the least burdensome means of correcting the history of discrimination. A few years ago the University of Alabama made the argument that it was reasonable to demote a nurse with breast cancer because Congress had not proven that there was a history of States discriminating against people with disabilities (psst there are pages and pages of examples going State by State in the Congressional record). The Supreme Court agreed with the University of Alabama and found that Congress lacked the authority to force States (but not counties, cities and towns) to be obligated by Title I and so Title I went away as it applied to State jobs (not private companies though. Private companies still have to follow the ADA Title I because the part that obligates them uses a different authority). Have no fear, Section 504 still applies and does basically the same thing as Title I (again 504 uses a different authority).
“If section 504 applies and does basically the same thing as Title I why is any of this important for us to know” you ask? Well, I’m glad you asked. It’s important because over and over people who are Deaf tell me the name of the interpreter from whom they are getting their information about the ADA. I’m not making any accusations that interpreters are wholesale violating the CPC (not wholesale, maybe retail… you know what? We need to have a long chat about the CPC and how we see it as a profession…)! I’m saying they sit in the lobbies of Deaf centers and at Deaf events and chat with Deaf friends or, shudder, ‘after the appointment is over’ which is a generally misunderstood time frame or perhaps even in the nuance of your interaction during an interpretation (read up on “interpreter role-space”) and interpreters say, often and with conviction, “that’s a violation of the ADA”… with NO IDEA if it actually a violation (Because RULE 11).
And then the Deaf State employee says to their supervisor “that violates my rights under the ADA” (because Rule 11 has a long reach) and the supervisor, knowing the ADA does not apply, continues to be a jackass because the supervisor knows that ADA does not apply and that the person who is Deaf does not understand their rights (At this juncture and by all that is holy stop reading this and go directly to the works of the brilliant Peter Llewellyn-Jones and Robert G. Lee on the topic of “Interpreter Role-Space”).
I leave all y’all with this thought. If States are not obligated to follow Title I of the ADA because it was passed under the authority of the 14th Amendment and the Supreme Court said Congress did not prove a history of discrimination and so lacked the authority… what about Title II which applies only to government entities and was passed wholly by the authority of the 14th Amendment? That is a complex discussion! We will save that for next time.
*ok the timelines on this are weird too. You have to file your complaint with an administrative agency first. You have 180 days from the date of the most recent act of discrimination to file with the EEOC, unless your state has a state level agency for workplace discrimination (Utah has UALD and Massachusetts has MCAD), then you have 180 days to file with that State level agency and 300 days to file with the EEOC. I know. “What the…” I know. Anyone who likes law or hotdogs should never see either being made.