EEOC תובע קפה על עובד נכה

If the notion of forcing Netflix to tailor movies for the deaf and blind or making banks replace their ATMs with audio-equipped versions sounds bad, take a moment to consider what the Americans with Disabilities Act does to employment.

Walter Olson's Overlawyered today piqued my curiosity about a case against a local cafe in Albuquerque, N.M.

According to the Equal Employment Opportunity Commission's complaint, Savory Fare Cafe dishwasher/busser Laura Mitchell wanted to become a cashier. But the company wouldn't train her for the position because of her disability. "Employers must make employment decisions based upon the abilities of their applicants and employees, not based on myths, fears or stereotypes about a person’s disability," insists an EEOC lawyer in a press release .

It's not clear from the EEOC's complaint or press release, or the answer the company filed in court, what the extent of Mitchell's disability was. The complaint does, however, note that Mitchell was born lacking a normal body part and is "substantially limited" in "major life activities" related to that part.

Now, maybe you're guessing Laura Mitchell is missing a leg or one hand. One might imagine an employer unjustly refusing to put such a person to work in a key position simply out of some stereotype that says a disabled person can't do as good a job as someone who isn't disabled.

What Laura Mitchell is missing, however, is an inner ear canal. The "major life activities" in which she is limited -- according to her champions at the EEOC -- involve hearing and speech.

And being a cashier involves, wouldn't you know it, hearing and speech. Communicating with a cashier is part of a customer's experience. Depending on how the cafe is organized (do the cashiers take orders? do they do so over the phone?) it may even be a big part. In Savory Fare's judgment -- a judgment made after it had already hired Mitchell as a dishwasher and therefore gained the opportunity to see firsthand how well or poorly Mitchell could deal with oral communication -- Mitchell wasn't the right person to do the job. And it was the company's owners whose business depended on the cafe's successful operation.

Unfortunately, under the ADA, it was the EEOC or the court that had to be convinced that there were good reasons for the company's decision. The cafe's owners and managers were not free to perceive the facts, think through their implications, and act according to their judgment.

The cafe settled the case, agreeing to pay $20,000 and write a positive letter of reference for Mitchell. It also agreed to rehire her as something other than dishwasher/busser -- but managed to avoid putting her at the cash register.

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