By William D. Parry, Esquire, Chair

National Stuttering Project Advocacy Committee

I. STUTTERING MEETS THE ADA'S DEFINITIONS OF "DISABILITY."

Title I of the Americans with Disabilities Act of 1990 (42 U.S.C. sections 12101 et seq.) ("ADA"), which took effect July 26, 1992, prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

It should be understood that the ADA does not list specific conditions by name as "disabilities." Congress purposely avoided doing this in order to avoid limiting the scope of the Act. Therefore, there is no significance to the fact that stuttering is not specifically listed, because no other conditions are specifically listed either. (It should also be noted that the Act does exclude certain specific conditions, and stuttering is not among those excluded. See, e.g., sections 12208, 12210, 12211.)

Instead, the question of whether an individual's condition is a "disability" under the ADA depends on whether it comes within any one of three general categories. The Act provides that: "The term 'disability' means, with respect to an individual -

"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

"(B) a record of such an impairment; or

"(C) being regarded as having such an impairment." 42 U.S.C. sec. 12102(2).

The federal regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") under the ADA define "physical or mental impairment" to include, among other things, "Any physiological disorder" or "condition" affecting "speech organs" (29 C.F.R. sec. 1630.2(h)(1)), or "any mental or psychological disorder" such as "organic brain syndrome, emotional or mental illness, and specific learning disabilities" (29 C.F.R. sec. 1630.2(h)(2)). The regulations' definition of "major life activities" includes, inter alia, "functions such as . . . speaking . . . and working" [29 C.F.R. sec. 1630.2(i)].

Stuttering is a speech disorder, typically beginning in early childhood and affecting approximately one percent of the population, that causes involuntary loss of coordination or control of the physical organs of speech, resulting in the physical blockage of speech. (For a review of scientific research showing the physiological nature of stuttering as a disorder of coordination, see Van Riper, C., The Nature of Stuttering, pp. 396-414 (Prentice-Hall, Englewood Cliffs, NJ, 2nd ed., 1982).)

Stuttering clearly fulfills the definition of a "physiological disorder" or "condition" that affects the "speech organs" and that limits an individual's ability to participate in the "major life activity" of "speaking" and, in some cases, "working".

In addition, even in those cases where a person's stuttering might not in itself "substantially limit" a major life activity under 42 U.S.C. sec. 12102(2)(A) of the ADA, that person might still have a "disability" under sec. 12102(2)(C) because he is "regarded as having such an impairment." As explained in the EEOC's Americans With Disability Act Employment Regulations, 29 C.F.R. section 1630.2(1):

"The rationale for the 'regarded as' part of the definition of disability was articulated by the Supreme Court in the context of the Rehabilitation Act of 1973 in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The Court noted that, although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. 'Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment.' 480 U.S. at 283. The Court concluded that by including 'regarded as' in the Rehabilitation Act's definition, 'Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment.' 480 U.S. at 284.

"An individual rejected from a job because of the 'myths, fears and stereotypes' associated with disabilities would be covered under this part of the definition of disability, whether or not the employer's or other covered entity's perception were shared by others in the field and whether or not the individual's actual physical or mental condition would be considered a disability under the first or second part of this definition. As the legislative history notes, sociologists have identified common attitudinal barriers that frequently result in employers excluding individuals with disabilities. These include concerns regarding . . . acceptance by coworkers and customers."

The EEOC Regulations give the following as an example of discrimination against an individual "regarded as" disabled under part C:

"For example, an individual may have a prominent facial scar or disfigurement, or may have a condition that periodically causes an involuntary jerk of the head but does not limit the individual's major life activities. If an employer discriminates against such an individual because of the negative reactions of customers, the employer would be regarding the individual as disabled and acting on the basis of that perceived disability. See Senate Report at 24; House Labor Report at 53; House Judiciary Report at 30-31."

Therefore, if an employer discriminates on the grounds that stuttering would make a "bad impression" or cause negative reactions among customers or coworkers, then the person's stuttering would come under the "regarded as" definition of disability in subpart C.

Furthermore, stuttering is a perfect example of a condition that is stigmatized by negative stereotypes. Research has confirmed that persons who stutter are subject to negative stereotypes, which have significantly harmed their employment and promotion opportunities. These stereotypes include the widely accepted impression that stutterers are nervous, shy, quiet, self-conscious, withdrawn, tense, anxious, fearful, reticent, and guarded. See, e.g., Hurst, M. I., & Cooper, E. B., Employer attitudes toward stuttering, Journal of Fluency Disorders, 8, 1-12 1983); White, P. A., & Collins, S. R. C., Stereotype by inference: A possible explanation for the "stutterer" stereotype, Journal of Speech and Hearing Research, 27, 567-570 (1984); Woods, C. L., & Williams, D. E., Speech clinicians' conception of boys and men who stutter, Journal of Speech and Hearing Disorders, 36, 225-234 (1971); Woods, C. L., & Williams, D. E., Traits attributed to stuttering and normally fluent males, Journal of Speech and Hearing Research, 19, 267-278 (1976).

II. STUTTERING HAS BEEN RECOGNIZED AS A HANDICAP ENTITLED TO PROTECTION UNDER STATE ANTI-DISCRIMINATION LAWS.

The fact that stuttering may qualify as a disability (or "handicap") entitling an individual to protection under an anti-discrimination statute was recognized by an Ohio Court of Appeals in City of Columbus v. Liebhart, 86 Ohio App.3d 469, 621 N.E.2d 554 (1993).

In that case, the plaintiff had served for 10 years as a part-time auxiliary fire fighter with a township fire department, had extensive fire-fighting and leadership experience, and had been rated as "excellent" by his co-workers. He then applied for a full-time position with the City of Columbus Fire Department. Although he successfully passed all his training courses and written exam, he was rejected because he stuttered during his oral interview.

Both the trial court and appellate court held that the plaintiff's stuttering was a "handicap" as defined in the Ohio Civil Rights Act, R.C. 4112.01(A)(13), even though the statute did not mention "speech" per se. The definition stated, in relevant part:

"'Handicap' means a medically diagnosable, abnormal condition which is expected to continue for a considerable length of time, whether correctable or uncorrectable by good medical practice, which can reasonably be expected to limit the person's functional ability . . . so that he can not perform his everyday routine living and working without significantly increased hardship and vulnerability to what are considered the everyday obstacles and hazards encountered by the nonhandicapped."

The appeals court stated:

"In the present case, the trial court was correct in concluding that Liebhart's stuttering disorder constituted a handicap. Liebhart testified that he was diagnosed as having this disorder, which he had had since he was eight years of age. He testified that his stuttering made it twice as difficult to carry on a conversation and this significantly affected his life. Further, speech pathologist Cathy Chester testified that one could assume that such a severe speech impediment would significantly affect his life. One could expect that his speech disorder would create significant hardship and vulnerability in a variety of everyday settings. The city did not offer any affirmative evidence to the contrary. Hence, Liebhart was handicapped under R.C. 4112.01(a)(13)."

The appeals court then went on to discuss the question of whether or not the plaintiff was "qualified to safely and substantially perform the essential functions of the job in question," in view of the fact that "clear, concise, and timely communication in the context of fighting a fire is an essential function of the job".

The Ohio Civil Rights Commission's hearing examiner, who presided over the testimony, found that plaintiff's stuttering was less of a problem when he was performing his duties as a fire fighter with the township than it was in everyday conversation. The hearing examiner expressly found that his "stuttering did not interfere with the performance of his job duties." Nevertheless, the hearing examiner found plaintiff unqualified, simply because he failed his oral interview. However, Civil Rights Commission strongly disagreed, stating that the oral interview was an improper selection device because it was an "insurmountable barrier to a speech impaired individual's employment opportunities to becoming a firefighter."

The case then went to the trial court, which rejected the Commission's reasoning. The trial court held that the persons who interviewed the plaintiff were the ones to determine if his communication problem constituted a significant hazard in the firefighting context. The Court of Appeals reversed the trial court, stating:

"The only evidence [the City] presented was the fact that Liebhart could not speak in a job interview - a totally different situation from that presented in a blazing building. The firefighters and assistant safety director simply assumed that Liebhart's stuttering is caused by nervousness and would get worse in a stressful fire situation. . . . They made their assessments of his abilities on the basis of assumptions about his handicap which had no basis in fact. This type of discrimination is exactly what the handicap discrimination law was designed to eliminate." (Emphasis added.)

COMMONWEALTH OF MASSACHUSETTS

HAMPDEN COUNTY SUPERIOR COURT - CIVIL ACTION NO. 2002-00785

FILED JUL 12 2004

GELFAND

vs.

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

 

MEMORANDUM OF DECISION AND ORDER

ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

The plaintiff . . . filed this wrongfu1 termination action against his former employer, the defendant Massachusetts Mutual Life Insurance Company, alleging discrimination on the basis of his age (Count I), national origin (Count II), and disability (Count III); and retaliation (Count IV). the defendant now moves for summary judgment on all counts. For the reasons stated herein, the motion for summary judgment is allowed in part and denied in part.

* * *

3. Disability Discrimination (G.L. c. 151B, §4 (16))

To establish a prima facie case of unlawful employment discrimination on the basis of handicap under G.L. c. 15IB, §4 (16), the plaintiff must present credible evidence that (l) he is handicapped within the meaning of the statute; (2) he was capable of performing the essential functions of the job with reasonable accommodation, (3) he was subject to an adverse action by his employer, and (4) the position he had occupied remained open and the employer sought to fi11 it. City of New Bedford v. Massachusetts Commission Against Discrimination, 440 Mass. 450, 461-462 (2003); Dartt v. Browning-Ferris Industries, Inc. (Mass.), 427 Mass. 1, 3 (1998).

The parties first dispute whether the plaintiff’s fluency disorder qualifies him as a handicapped person protected under G.L. c. l5lB, §4. A handicap is an actual physical or mental impairment which substantially limits one or more major life activities. G.L. c. 151B, §1 (17). In order to determine whether the plaintiff has demonstrated that he or she is handicapped, the court considers three factors: (1) whether the plaintiff’s condition, actual or perceived, constitutes a mental or physical "impairment'; (2) whether the life activity curtailed constitutes a "major" life activity as defined by G.L. c. 151B, § 1 (20), and its accompanying regulations; (3) whether the impairment substantially limited the major life activity. City of New Bedford v. Massachusetts Commission Against Discrimination, 440 Mass. at 463. For protection as a handicapped individual under G.L. c. l51B, a plaintiff must offer evidence that the extent of the limitation caused by the impairment in terms of his or her own experience is substantial. Id. An impairment substantially limits an individua1's ability to work if it prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes. See City of New Bedford v. Massachusetts Commission Against Discrimination, 440 Mass. at 463, citing MCAD Guideline: Employment Discrimination on the Basis of Handicap Chapter 151B, §11.A.6 (1998); Ocean Spray Cranberries, Inc. v. Massachusetts Commission Against Discrimination, 441 Mass. 632, 639 (2004), The determination of whether a person qualifies as handicapped is an individualized inquiry. Id. at 637.

The summary judgment record on this point leaves no doubt that the plaintiff's fluency disorder, which speech pathologists have linked to a hearing loss and his Russian accent, caused the plaintiff and those with whom he communicated frustration, confusion, and delays at work. For purposes of the motion before me, I conclude that the plaintiff’s fluency disorder impaired his ability to speak, which is a major life activity. See G.L. c. 151B, § 1 (70)`

At issue, then, is whether the plaintiff’s fluency disorder substantially impaired his speech. This condition, whether described as a communication problem, a stutter, a fluency disorder, and/or a difficulty in understanding others, causes the plaintiff anxiety which in turn triggers communication breakdowns. The plaintiff’s fluency disorder interferes with his daily communications so much that others have avoided conversing with him. Moreover, the plaintiff’s communication problems intensified when his supervisors did not intentionally limit his workload. The plaintiff’s occasional denial of having a disabili1y as he perceives that term, and his belief that others can understand him if they so choose, does not undermine the sufficiency of the summary judgment materials demonstrating that the plaintiff’s fluency disorder has significantly restricted him from performing a class of jobs or a broad range of jobs which require effective communication skills. See Ocean Spray Cranberries, Inc. v. Massachusetts Commission Against Discrimination, 441 Mass. at 639. Consequently, the defendant has not shown that the plaintiff failed to make out a prima facie case of handicap discrimination.

The defendant further argues that the plaintiff will not be able to prevai1 at the third stage by demonstrating that the defendant’s decision to terminate him was a pretext for handicap discrimination. The plaintiff has shown more than a mere conflict in the evidence regarding the defendant's motive for terminating the plaintiff, in light of the fact that the defendant's longstanding major concern with the plaintiff’s work related to his communication difficulties, and that such difficulties cannot be viewed apart from his stutter and hearing loss. On this record, summary judgment is inappropriate with respect to Count III.

* * *

ORDER

For the foregoing reasons, it is hereby ORDERED that the defendant's motion for summary judgment be DENIED as to Count III and ALLOWED as to Counts I, II, and IV.

John A. Agostini
Justice of the Superior Court

DATED: 7/2/04
 

III. THE DETKO V. BLIMPIES CASE DID NOT EXCLUDE STUTTERING FROM THE ADA.

Contrary to an argument sometimes made, the U.S. District Court in Detko v. Blimpies Restaurant, 924 F.Supp. 555 (S.D.N.Y. 1996), did not hold that stuttering could not qualify as a disability under the Americans with Disabilities Act. The Court merely held that, in order to invoke protection under the ADA, the plaintiff cannot simply plead in his complaint that he "stutters." The Court said that the plaintiff must plead facts showing that his stuttering comes under one of the statutory definitions of a "disability" as set forth in the Act. However, Mr. Detko had failed to plead facts in his complaint that would bring his stuttering under one of the statutory definitions of "disability." The court stated:

"A disability is defined as 'a physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . or being regarded as having such an impairment." 42 U.S.C. sec. 12102(2)(A). "Although speaking is a major life activity, see 29 C.F.R. sec. 1630.2(i), Detko has not alleged that his impediment substantially limits his speaking or that he is regarded as having such an impairment. To the contrary, he merely alleges that he stutters, and has particular difficulty with the letter 'M.'" Id., at 557 (emphasis added).

Therefore, the Court dismissed Detko's complaint without prejudice. In other words, the Court allowed Mr. Detko the opportunity to rewrite his complaint to allege additional facts. It is not known whether he ever did so, because there are no further published opinions in that case.

IV. PERSONS WHO STUTTER SUFFER EMPLOYMENT DISCRIMINATION BECAUSE OF THEIR DISABILITY.

Scientific studies have shown that 85 percent of employers agreed that stuttering decreases a person's employability and opportunities for promotion. Hurst, M.I. & Cooper, E.B., Employer attitudes toward stuttering, Journal of Fluency Disorders, 8, 1-12 (1983). Vocational rehabilitation counselors who were surveyed reported that stuttering was indeed vocationally handicapping. Hurst, M.I. & Cooper, E.B., Vocational rehabilitation counselors' attitudes toward stuttering, Journal of Fluency Disorders, 8, 13-27 (1983). Surveys of people who stutter have reported high rates of unemployment, discrimination in attaining employment, and denial of promotions because of stuttering. Opp, K.L., Hayden, P.A., & Cottrell, G.T., Stuttering and employment: A survey report, Annual Convention of the American Speech, Language, and Hearing Association, Boston, MA (1997).

The studies cited above are only a tiny sampling of the extensive scientific research demonstrating the serious effect that stuttering has on major life activities and employment. The millions of Americans who are afflicted with stuttering need and deserve the protection of anti-discrimination statutes such as the ADA. They are entitled to their day in court and to a full hearing on the merits.