Stuttering, Employment and the ADA

FAQ #2: Stuttering, Employment, and the ADA

STUTTERING, EMPLOYMENT, AND THE AMERICANS WITH DISABILITIES ACT

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The author, Thomas David Kehoe, is owner of Casa Futura Technologies, president of the San Jose chapter of the National Stuttering Project, and a member of the American Speech-Language Hearing Association.

July 2, 1995

THE CASE OF THE DISFLUENT WEATHERMAN

"There was a recent case of discrimination based on stuttering that I was able to play a small role in. A weather forecaster for the National Weather Service, based in Washington, D.C., was denied promotion to a higher position, where he would have had to make rapid decisions about forecasts, on the grounds that he was "indecisive." He sued the government, claiming discrimination against him based on his speech. The supervisor, who made the judgment, had no other evidence that he was indecisive, except his speech, and of course hesitancy in speech does not in any way imply hesitancy in decision making.

"I was asked to supply expert testimony and did so by reviewing the scientific literature showing a cleat tendency for listeners to make false judgments about stutterers, and employers in particular. A telling piece of evidence for this case came from a study in which it was shown that the personality characteristics that nonstutterers attribute to people who stutter are based on the feeling that the nonstutterers fell when they are hesitant, or stumble, in their speech Q nervousness and uncertainty primarily. We were able to argue that, in the case of the weatherman seeking promotion, the supervisor had made just such an error concluding from his speech pattern that he was uncertain because she (the supervisor) stumbled in her speech when she felt uncertain. Upon presentation of this testimony, the case was settled and the man promoted." (Woody Starkweather, Ph.D.)

THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act of 1990 (ADA) prohibits employment discrimination against qualified individuals with disabilities. ADA defines three types of an "individual with a disability" (Equal Employment Opportunity Commission Technical Assistance Manual, page II-3):

- a physical or mental impairment that substantially limits one or more major life activities. Speaking is one such major life activity. Others include seeing and hearing.

- a record of such an impairment. This applies more to individuals with a history of mental illness.

- is regarded as having such an impairment. This protects people who are not substantially limited in a major life activity but are perceived to have such a limitation. For example, you may be capable of communicating, but your employer thinks that you can't communicate.

The ADA applies to private employers, state and local governments, employment agencies, and labor unions. The ADA does not apply to the federal government, including the military services.

MYTHS ABOUT PERSONS WHO STUTTER

In a job interview, Carol asks whether her stuttering will be a problem. The interviewer says yes, the job requires making presentations to clients.

Carol says that she has completed two courses in public speaking. She explains that she can't say as much as fluent persons, so she plans her presentations carefully, gets up in front of the group, and gets right to her points. Her professors say that her presentations are generally better than her fluent classmates'.

The interviewer says that excellent presentation skills are required for the job and ends the interview. Is the interviewer discriminating against Carol?

Yes. The interviewer has never seen Carol make a presentation. Persons who stutter can have excellent communication skills. Carol's presentations may be informative, interesting, and persuasive. The interviewer falsely believes that persons who stutter can't make excellent presentations.

The Supreme Court stated that, "society's myths and fears about disability and disease are as handicapping as are the physical limitation that flow from actual impairments." (EEOC, II-10.)

THE PRINCIPLE OF REASONABLE ACCOMMODATION

ADA protects individuals with disabilities who are qualified for jobs. ADA defines two steps in determining qualification for a job:

- education, work experience, training, skills, licenses, certificates, etc.

- whether the individual can perform essential functions of the job, with or without reasonable accommodation.

An essential function is a task that the employees in the position actually do, and removing that task fundamentally changes the job. ADA does not require employers to develop or maintain written job descriptions (EEOC, II-15).

Mark is a software engineer. His supervisor announces a job opening for a telephone customer support engineer, at $5,000 a year more than what Mark earns. Mark expresses interest in the job. His supervisor advises Mark to stay in software development.

Mark suggests a reasonable accommodation. The technical support staff receives questions both by telephone and by electronic mail. He suggests that he answer all the electronic mail, thus freeing the other technical support staff to answer more telephone calls.

His supervisor says that this won't work. The calls tend to come in bunches, and sometimes they need as many people on the phones as possible. At other times no calls come in for hours, and the staff answers the electronic mail during these lulls.

Mark is capable of talking on telephones, but he is not as capable as other employees. Mark finds talking on telephones difficult and embarrassing. ADA requires the employer to make a reasonable accommodation if the employee requests one.

Mark shows his supervisor a brochure for an electronic fluency aid that plugs into telephones. According to the brochure, the fluency aid will enable Mark to talk fluently immediately, and the fluency aid costs $500.

Mark also shows his supervisor a brochure from a speech therapy clinic. This costs $2500, and Mark will have to take two weeks off from work. Mark asks his employer to pay for one or both of these.

The supervisor says that if Mark pays for the electronic fluency aid or the speech therapy, and demonstrates that he can talk fluently, then the supervisor will promote Mark to the new job. The supervisor says that with the additional $5,000 a year salary, Mark will come out ahead.

Does ADA require the company to pay for Mark's electronic fluency aid or speech therapy?

Employers are not "...obligated to provide personal use items, such as glasses or hearing aids..." (EEOC, I-6). Mark will have to prove that he doesn't need the fluency aid or speech therapy outside of work.

A reasonable accommodation need not be the best accommodation available, as long as it is effective for the purpose (EEOC, III-4). If the $500 electronic fluency aid enables Mark to talk fluently, his employer does not have to pay for the $2500 speech therapy. (These prices are fictitious. Actual electronic fluency aids and speech therapy programs vary widely in price.)

A qualified individual with a disability has the right to refuse an accommodation (EEOC, III-1). If Mark doesn't want to use an electronic fluency aid or go to speech therapy, his employer can't force him.

FREE MONEY FROM THE IRS IF YOU STUTTER!

The Tax Credit for Small Business (Section 44 of the Internal Revenue Code) credits smaller employers for half the cost of "eligible access expenditures" (EEOC, III-34).

The software company buys Mark a $500 electronic fluency aid, and the IRS gives them $250 back in a tax credit.

The Targeted Jobs Tax Credit Program gives tax credits to employers who hire individuals with disabilities. The IRS will give your employer up to $2400 for hiring you.

The IRS allows you to deduct medical expenses, including special equipment, provided you itemize deductions on Schedule A, and your total medical expenses exceed 7.5 percent of your adjusted gross income.

There are many other sources of third-party payment for stuttering therapy and equipment:

- NYNEX will provide an anti-stuttering (DAF) telephone to Massachusetts residents who stutter (the device won't be available until August 1995). California, Minnesota, and Montana telephone companies are expected to provide similar equipment in 1996.

- If you are unemployed, your state vocational rehabilitation program may pay for therapy and/or equipment.

- Some insurance companies pay for speech therapy and/or equipment. Many, however, exclude stuttering.

- Low-income children who stutter may qualify for federal Supplemental Security Income.

Details are available in the Americans With Disabilities Act Resource Directory and in the Pocket Guide to Federal Help for Individuals with Disabilities (available from the U.S. Government Printing Office, Pueblo, CO 81009).

WHO CAN YOU CALL?

If you feel you have been discriminated against, call your local office of the Equal Employment Opportunity Commission and file a complaint. You can also call the EEOC at (800) 669-4000.

You must file a charge of discrimination within 180 days of the alleged discriminatory act (EEOC, X-3).

After you file a charge of discrimination, the EEOC notifies the charged entity. The EEOC then investigates, and attempts to resolve the charge through conciliation. If conciliation fails, the EEOC files suit or issues a "right to sue" letter (EEOC, X-2).

For publications about ADA, call the EEOC ADA Helpline at (800) 669- EEOC. Request the publication A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act. Also request the accompanying Resource Directory, which lists government programs and other organizations that provide information on disabilities and employment.

ADA covers only employment discrimination. If you experience discrimination or harassment outside of work, you will have to rely on other federal or state laws. The ADA Resource Directory should get you started, or you may contact non-profit organizations such as the Stuttering Foundation of America or the National Stuttering Project.

HOW TO HANDLE JOB INTERVIEWS

"Another interview lasted about two minutes. The interviewer (another personnel director -- they seem to be the worst problem) found an excuse to say I was not qualified for the job -- so good-bye. I protested, asked for the technical interview and was asked to leave. As his excuse was plainly made up -- this was also probably a case of discrimination." (David N. Bertollo)

Talk about stuttering first. Your first impression on the interviewer will be that you stutter -- and many people feel uncomfortable talking to a person who stutters. Educate them about stuttering to make them feel comfortable.

Some interviewers make incorrectly assumptions about individuals who stutter (EEOC, V-16). For example, some people think that individuals who stutter are mentally retarded -- even if you have a Ph.D.!

"About 6 years ago, students in my grad. class in stuttering did several survey studies regarding stuttering...One of the most interesting involved employers. As a group, the employers surveyed indicated that they would prefer to hire someone who was deaf or someone with moderate cerebral palsy rather than someone who stuttered. Interestingly, several of the employers who said they would not hire a stutterer had one or more stutterers already working for them.

"When we probed to understand the WHY behind the employers' responses, we learned that essentially they thought they "understood" deafness and CP, but stuttering was strange -- and they assumed that persons who stutter were strange." (Frances Freeman, Ph.D.)

Say that you stutter and explain what you are doing to overcome stuttering:

- If you're in a speech therapy program, discuss your progress and what specific techniques or strategies you are trying to employ.

- If you learned nonavoidance skills in speech therapy, explain that although you stutter, you've overcome your fears of talking to strangers, etc.

- If you use an electronic fluency aid, briefly explain how your fluency aid works.

"I have completed a Ph.D. in Electrical Engineering from SUNY at Buffalo. I have been applying to several places for jobs. Fortunately, I did get three interviews. It is sad to say that, despite my excellent qualification and technical abilities, after the interviews, they are suddenly not interested in education and obviously do not want to extend any hopes (obviously after finding out my stuttering problem). During the last interview, the vice president of the division asked me if I have any speech problem. I honestly explained my stuttering and told him about my ongoing speech therapy. Needless to say that my confrontation immediately turned him off and I never heard back anything from that company.

"Please note that it does not seem to be open discrimination but I feel that had I was fluent I could have possible job offer since it was directly in field of my research work." (Name withheld)

Employers may not make any pre-employment inquiries regarding disability, but may ask questions about the ability to perform specific job functions. In other words, an interviewer may not ask you about your stuttering. An interviewer may ask if you have experience making telephone calls to customers, or about your experiences in public speaking, if these are essential job functions.

If the interviewer says something unlawful, politely explain the ADA. Bring a copy of the ADA Technical Assistance Manual with you.

Explain that you have excellent communication skills. Give specific examples:

- "Although I stutter, I've developed my public speaking skills through membership in Toastmasters."

- "I can say a phrase fluently if I say it a lot. In my last job, I pretty much said the same things to customers all day, and my speech was fine."

- "In my last job, I was on the marketing staff, and had to call engineers every day. At first the engineers didn't want to talk to me, maybe because I was in marketing, maybe because I stutter, I don't know. But flattery got me everywhere. I said things like, 'You're the expert on this system, can you explain how to...' Soon the engineers were returning my calls right away."

After you get the job, don't shirk duties to hide stuttering. This gives employers excuses to fire you. You can't claim discrimination if you shirk duties.

"The interview for the job that I currently have was one of the few interviews in which I discussed in depth the nature of my stuttering problem. I spent about a half hour discussing my speech, and I think that it was very helpful for the interviewer in understanding how well I could work around my handicap." (Tom Morrow)