Lawyers often have to explain to clients the risks of litigation: it is expensive, emotionally draining and time consuming, with no guarantees of success. But what about the risks before litigation is even commenced?
I recently spoke with a person who is one of the millions of Americans with the sensory disabilities hyperacusis (sound sensitivity) and tinnitus (ringing in the ears). She wanted to ask her employer for reasonable accommodations suggested by her health care provider that would make her more effective, but she was worried about retaliation for asking, and maybe even losing her job. I was faced with an everyday dilemma in my profession: providing false hope or the unfortunate truth.
The Americans with Disabilities Act requires employers and businesses open to the public to provide reasonable accommodations, and prohibits employers and businesses from discrimination or retaliation against an individual seeking to exercise their rights. The EEOC is charged with enforcing Title I the ADA in the workplace, and the DOJ is charged with protecting patrons at businesses open to the public under Title III. In addition, there are Disability Rights Organizations (“DROs”) in every state.
People with invisible “Hyp-Tin” disabilities have to ask for help if they want a chance to participate in society. Those requests are legally categorized as “complaints” that can immediately create an adversarial relationship, and the disabled can be socially penalized for their advocacy. Even though many accommodations are no cost, they encounter a litany of subtle albeit prohibited tactics. Employers claim they want to help but they don’t have resources, or are too busy, while affected employees are isolated, given less desirable assignments, and overlooked for promotions. Businesses use similar excuses with patrons, and treat them as pariahs. A Forbes article notes many dismiss accommodation requests out of hand, which in turn “feeds the cycle of injustice and further marginalization.” The message is clear: you are no longer welcome. Many disabled are just “one resentful comment away from withdrawing into silence and timidity.”
In 2023 the EEOC took a major step forward and issued important guidance that “Hyp-Tin” are ADA disabilities. This is great news for employees. However, it doesn’t appear the DOJ has ever addressed Hyp-Tin in any of its publications, and before one can work one needs to shop for essentials like food and clothing. I have spoken to numerous DROs, some of whom receive specific funding for people with hearing disabilities, yet I have never spoken to one person who has heard of Hyp-Tin before I called. After diligent research I haven’t found any public record of the EEOC or DOJ ever taking on a Hyp-Tin claim. I hope that’s merely due to lack of publicity, and if the EEOC, DOJ or a DRO has brought a such a case, please let me know and I’ll raise awareness and publicize enforcement is a priority.
Make no mistake, there are many great, caring and hardworking people with these entities who may simply be not informed, or may not have the funding or authority to take action. Nevetheless, it is still extremely risky for anyone with Hyp-Tin to come out of the shadows. Even if represented a “complainer” may well have lost their job, been banned from a business, moved to a new locale, or worse, before resolution. They may well conclude it would have been better not asking for help and hide in silence.
With those real risks, who am I to counsel others to stand up for their rights, even if it doesn’t cost them money to try?
Until then I am faced with a Hobbesian choice. Either give people seeking counsel false hope (that may result in losing their job, or losing access to a critical business for food), or tell them the unfortunate truth (which can be very depressing and perpetuates ignorance). I wish I knew the answer.
Copyright John Drinkwater 2024 All Rights Reserved
Disclaimer: This content is provided for general informational purposes only, and may not reflect the current law in all jurisdictions. No information contained in this post should be construed as legal advice nor is it intended to be a substitute for legal counsel on any subject matter. Readers should consult their own advisor for legal or other advice.