To Sue or Not to Sue?

Employment Matters column,

One day during the early 90s at a large Washington, DC courthouse, I was suddenly seized without warning by three burly policemen.

My first reaction was astonishment, and the second was fury. I had been minding my own business, doing nothing wrong – who were these people to grab me? – and began fighting to break free. Not a good idea.

As we struggled, I screamed “I’M HEARING IMPAIRED, DAMNIT!” I would have said I’M DEAF, but I remember thinking they wouldn’t believe me if I was screaming it. And ‘hearing impaired’ was the fashionable phrase among hearing people at the time, so I said what I thought they would understand.

They slapped me in handcuffs and left me standing alone in the lobby, angry and humiliated. Eventually they walked me outside, and a lawyer who witnessed the whole spectacle stuffed his card in my shirt pocket and urged me to contact him later. I was taken away in a squad car and driven to a nearby police station. They emptied my pockets – wallet, lawyer’s card, keys – and locked me in an empty cell. I remained there for 45 minutes before someone came around to interview me. I had plenty of time to think about that lawyer’s card.

The interviewer took down basic identification info, then I explained what happened from my point of view. The interviewer went away for another half hour, returned, opened the cell, gave me my belongings and said, “You’re free to go.”

Huh? I started asking questions. Why had I been seized and taken to jail?

Here’s what happened. I’d gone into the courthouse because I was having trouble locating a building nearby, and the courthouse has an information desk. I wrote a note to the clerk asking for directions to the building, and she very kindly wrote out detailed instructions and drew a small map. I thanked her, turned to leave the building, and glanced up to locate the exit. I spotted it, then returned my attention to the note she gave me as I continued walking. I was nearing the exit when I was grabbed.

Turns out, the police had asked me to stop before I reached the door, but of course I didn’t hear them. They asked again, more insistently, and I kept going. They were working security at a major courthouse, and part of their job is to make sure that none of the assorted criminals there for trial slip away. When they asked me to stop, I – from their point of view – ignored them. So they assumed I was trying to sneak out.

As you might expect, they deal with a lot of people who will lie from sunup to sundown, so nothing I said to them was to be believed. They had to check me out. That’s why I was taken to the police station and held there while they gathered facts and checked out my story. When they discovered I was who I said I was and was doing what I said I was doing, they released me, with no record of arrest.

So I was free again. But I had another question that remained unanswered. I had the lawyer’s card. Should I sue or not? Wrongly arrested, held in handcuffs, imprisoned – all this just for seeking directions?

I mulled it over for a while. I knew there might be money in it, and that was tempting, but in the end I recognized that a lawsuit made no sense – the police were just doing their jobs.

They didn’t, and couldn’t know at that moment that I was deaf. They didn’t, and couldn’t know that I was honest. As soon as they did, they explained what happened and I was free. I took it as a lesson – where police are around, keep your eyes open and pay attention. It also gave me a new appreciation for how easy it is for encounters between deaf citizens and police to go badly. These misunderstandings can be, and sometimes are, deadly.

Conflict between deaf employees and hearing employers is seldom deadly, but it does frequently raise the same question I considered – to sue, or not to sue? There is no simple answer, because every situation is different.

Whatever business they are in, the first priority of private employers is earning a profit. If they don’t, of course, they’re out of business – and so are their employees. Their focus is on increasing income and avoiding costs. When they see deaf applicants and workers, their fear is that the worker will become more of a cost than a source of income. The costs come in the form of accommodations – interpreters, fire signaling gear, TTYs or videoconferencing equipment.

These fears are fed by headlines of lawsuits by deaf workers against their employers. Just last year, there was a jury trial in Baltimore that ended with a $108,000 award to a deaf employee of FedEx, following their refusal to provide him with an interpreter. That case was pursued by the U.S. Equal Employment Opportunity Commission (EEOC) – the government went to bat for the employee.

Then there’s the huge ten million dollar settlement of a class action lawsuit by over 1,000 current and former employees of United Parcel Service four years ago. This case was also about interpreters, and UPS agreed to provide them going forward.

Three years ago, the Supreme Court considered Tennessee vs. Lane, a case that determined whether disabled people should even be allowed to sue a state government. They decided yes, they should – but the decision was very narrow, with 5 justices in favor and 4 opposed. Just one person, and one vote – by Justice Sandra Day O’Connor – marked the difference between our being locked out of court or having a day in it.

Some employers see these stories and many more like them, and see deaf applicants as lawsuits waiting to happen. This, of course, just makes it harder for deaf people to find good jobs.

On the other hand, we know that with reasonable and affordable accommodations, deaf workers can be effective and productive employees. It falls on us to make this clear to employers. There will always be some situations where it will take a lawsuit to convince. But before we get to that point, the responsible approach is to work through alternatives first. The National Association of the Deaf recognizes this, and has published a clear guide for employers.

It lays out what is needed, and notes that employers can deduct the cost of accommodations, and maybe qualify for special tax credits to help reduce the cost of reasonable accommodations. This makes the whole cost issue much easier to deal with, and if employers openly worry about a lawsuit, it’s worth pointing out that providing reasonable accommodations in the beginning is the best defense against a lawsuit ever happening.

When we are faced with a stubborn employer who balks at providing interpreters and other essential accommodations, it’s reasonable and natural to get upset. It’s also human nature to be tempted by the prospect of a big score through a lawsuit. But we need to keep in mind the job prospects for other deaf workers. We are all in this together – how we deal with the accommodations issue will affect everyone in the deaf community.

Yes, the UPS settlement created better conditions at UPS for deaf employees, and that’s an important win. It also undoubtedly created a ripple effect that scared other employers. You may meet some of them someday. When you do, tread carefully. Professionally request accommodations, discuss, negotiate. If all responsible approaches fail, then fight, but more in sorrow than in anger. Lawsuits are an important tool, but they should be a last resort.

Our final goal is to treated as equal and work as equal – because we are equal.