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EMPLOYMENT LAW UPDATE

Disability discrimination and lookism in the workplace

By Mike O’Brien

EEOC sues a work placement agency on behalf of disabled workers for disability discrimination

The EEOC announced this week that it has filed suit under the Americans with Disabilities Act (ADA) against a Hawaii work placement agency for disabled workers. The suit alleges that the agency refused to provide sign language interpreters for deaf employees, despite repeated requests by several deaf individuals. The workers had asked for interpreters to be present at staff meetings where matters such as work safety, protocols, and assignments were discussed. Despite these requests for accommodation, the agency declined to provide interpreters and instead gave the deaf workers written notes and handouts, or asked a deaf employee to interpret for other deaf employees. The EEOC asserts that these accommodations were ineffective and that as a result, the workers were deprived of full participation in the staff meetings, and lacked equal access to important information about their jobs.

The case serves as a reminder that although an employer need not necessarily provide the worker’s preferred accommodation, the ADA does require an effective reasonable accommodation. If the allegations are proven true, the employer here may have dropped the ball in the mandatory interactive process under the ADA. This problem may have been prevented through adequate follow-up by the agency after implementing an accommodation, to determine whether it was actually effective.
The lawsuit seeks compensatory and punitive damages, as well as an injunction preventing further discrimination.

A link to the news release is here: EEOC News Release re Disability Discrimination Case.

Is lookism the next frontier?

A recent opinion piece by New York Times columnist David Brooks, provocatively titled “Why Is It Okay to Be Mean to the Ugly,” tackled the issue of discrimination based on attractiveness. https://www.nytimes.com/2021/06/24/opinion/why-is-it-ok-to-be-mean-to-the-ugly.html Brooks argues: “We live in a society that abhors discrimination on the basis of many traits. And yet one of the major forms of discrimination is lookism, prejudice against the unattractive. And this gets almost no attention and sparks little outrage. Why? Lookism starts, like every form of bigotry, with prejudice and stereotypes.” He notes that most people find faces attractive based on symmetry, and then make inaccurate judgments that attractive people are more “trustworthy, competent, friendly, likable, and intelligent.” Studies show that attractive people are treated preferentially in job interviews, graduate programs, compensation, and even the criminal justice system.

While there is no federal law specifically against discrimination based on physical appearance, a few state and local anti-discrimination laws include “physical appearance” as a protected trait. Laws against hairstyle discrimination are being enacted in multiple jurisdictions to prohibit adverse treatment based on natural hair or hairstyles associated with Black people. Discrimination based on factors like obesity may, in some circumstances, run afoul of the Americans with Disabilities Act. On the other hand, employers may lawfully maintain dress and grooming policies that are non-discriminatory. Experienced employment law counsel can assist in crafting and implementing such policies.

Ultimately, workplace decisions should be based on legitimate, job-related factors. The Brooks column reminds us of an unconscious bias that, although perhaps not illegal, should be avoided.

 

 

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