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Disability Discrimination

COVID-19 and Disability Discrimination: “People with hearing loss constantly say that it’s exhausting to communicate”.

Much disruption, pain, loss, inconvenience, and heartache have arisen in the past year as the COVID-19 pandemic has coursed through the country. Lives have been deeply affected and losses, familial, financial, and psychological, have been widespread.

The pandemic has also revealed deep social disparities and fissures, with large numbers the result of bias, inequity, and discrimination.  Among the disparities laid bare are those concerning people with disabilities.  For many, daily navigation has been deeply complicated as the routines of life have been turned on edge.

In response, organizations and businesses need to have legally acceptable communication methods, such as in-person or virtual sign language interpreters, and a business culture that accommodates itself to the needs of customers, clients, and patients and their particularized communication and mobility imperatives. Often, business is unprepared for a customer with a disability. This lack of preparation invariably results in severe, costly consequences.

“It’s already difficult being hearing-impaired in normal settings.” she says, “It’s a thousand times worse now that everyone is wearing a mask.” 

For many people who are deaf or hard of hearing, their reliance upon seeing others’ faces, lips, and expressions to enable effective communication has been disrupted. Simply put, COVID mask wearing covers faces, making it impossible for deaf people to see faces, lips, and read individual expressions, absent people wearing clear face masks.

Case in point, Ashley’s experience at an eyeglasses store in Houston, according to reporting by Mother Jones:

“The employees may have spoken louder so that she could understand them through their masks, but since she reads speech instead of signs, she asked them to lower their masks so she could understand what they were saying. They refused. After all, it was mid-July when cases of the coronavirus were spiking in Houston—on July 14, there were 2,962 new cases in the city on a single day.

Unable to read their expressions or understand what they were saying, Ashley (who asked that her last name not be used) became so frustrated and upset that she left the store—and left the state.

She scheduled an appointment in her home state of Louisiana, a five-hour drive away, because even though masks are still required there, a mandate exempts those “trying to communicate with a person who is hearing-impaired.” 

Like many others who are deaf or hard of hearing in the United States, Ashley relies heavily on speechreading to understand people. “My lifeline,” she calls it. Usually, Ashley would manage the demands of daily life, like trips to the grocery store or the optician, by letting “the person helping me know that I was hearing-impaired, I lip-read so please be patient.” But that’s become complicated during the pandemic. As her experience at the Houston store illustrates, the new rules of engagement that create minor inconveniences for most people have become fundamental disruptions for many people who are deaf or hard of hearing.

“It’s already difficult being hearing-impaired in normal settings.” she says, “It’s a thousand times worse now that everyone is wearing a mask.” 

Ashley’s interaction was troubling, but not unique. “People with hearing loss constantly say that it’s exhausting to communicate in these kinds of settings,” says Dr. Debara Tucci, director of the National Institute on Deafness and Other Communication Disorders at NIH, describing how social distancing and mask wearing have affected many people. “I think that this is going to go on for a very long time.”

Ashley’s experience reinforces the ongoing discrimination many people with communication disabilities face, with organizations and businesses not understanding their legal obligations not to discriminate against people because of disabilities.

Disability Discrimination is Illegal

For example, on February 9, 2021, the U.S. Equal Employment Opportunity Commission announced a discrimination settlement with Cracker Barrel Old Country Store involving a deaf job applicant.

Cracker Barrel agreed to pay the applicant $15,000 for the discrimination, is ordered not to engage in future disability discrimination, and is required to provide train­ing on the Americans with Disabilities Act (ADA), including on non-discriminatory interviewing and hiring practices. The restaurant must also post a notice reminding employees of their rights under the ADA.

According to the EEOC, an applicant who is deaf applied online for the position of dishwasher at Cracker Barrel. When he appeared for his scheduled interview at the restaurant’s Linthicum Heights, Md., store, he was turned away by a manager and later formally rejected by the restaurant after repeated attempts to contact them.  Despite this abject discrimination, the applicant found employment with a non-Cracker Barrel restaurant and achieved a successful employment history. The EEOC alleged that the Cracker Barrel manager who turned him away did so because of his deafness.

“This settlement should remind all employers that job applicants despite their disabilities, must be given the same opportunities to apply for and succeed in the workplace as non-disabled applicants,” said EEOC District Director Jamie Williamson of the EEOC’s Philadelphia District Office. “Hiring decisions should be made based on an individual’s qualifications and not because of a disability.”

The case is: EEOC v. Cracker Barrel Old Country Store, Civil Action No. 1:18-cv-02674-PX U.S. District Court for the District of Maryland)

The pandemic is reinforcing and perpetuating similar biases, discriminatory behaviors, and stereotypes about people with disabilities while also spawning a steadily increasing number of discrimination lawsuits. According to USA Today “COVID is now a driver of filings and is significantly impacting workplace class-actions.”

Pre-Existing Condition Discrimination in a Pandemic

One area of ongoing concern relates to people with pre-existing conditions and disabilities. Some pre-existing conditions, such as cancer, heart conditions, and diabetes, may increase a person’s susceptibility to COVID-19. These conditions also qualify as disabilities under federal law.

The Centers for Disease Control report about the “underlying medical conditions that put adults of any age at increased risk for severe illness from the virus that causes COVID-19:”

“Adults of any age with the following conditions are at increased risk of severe illness from the virus that causes COVID-19:

 “I think that this is going to go on for a very long time.”

In 2020, many states, such as Pennsylvania, Kansas, Alabama, and Washington, were cited by the U.S. Department of Health and Human Services (HHS) for denying COVID treatment to people with certain disabilities. Some states and health care providers made the discriminatory assumption that people with disabilities have a lower quality of life than other people. For example, a discrimination complaint to HHS highlighted significant bias in the State of Washington’s COVID care treatment plan, with negative assumptions made about the quality of life for people with pre-existing conditions after their recovery from COVID:

“Overall survival may be further qualified as healthy, long-term survival, recognizing that this represents weighting the survival of young otherwise healthy patients more heavily than that of older, chronically debilitated patients. Such weighting has general support in medicine and society at-large. This plan, which rations care on the basis of disability, is a clear violation of federal disability rights laws”

As Penn Live reported about the disability discrimination concerns raised for the state government’s care guidelines:

“The overall goal, as stated in the guidelines, is to use available resources in a way that helps the most people, and to maximize “life years,” which means favoring people deemed to have more years of life ahead of them.”

The pandemic is an ongoing wake-up call across the board, involving myriad sectors and issues. One of the most significant is avoiding discrimination and instead, having required policies, tools and training in place to ensure all people are treated equally and equitably while not imposing disparate, negative treatment because of disabilities.

Perhaps business can then avoid the concerning prediction of the National Institute of Health’s Dr. Debara Tucci:  “People with hearing loss constantly say that it’s exhausting to communicate… I think that this is going to go on for a very long time.”


© Bruce L. Adelson 2021. All Rights Reserved The material herein is educational and informational only.  No legal advice is intended or conveyed.

Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise.  Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.  Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.

Mr. Adelson’s blogs are a Bromberg exclusive

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