Was Starbucks In The Wrong For Firing A Deaf Employee? [e233]

October 26, 2015

The guys discuss Starbucks firing a deaf employee and what is considered a reasonable accommodation for someone requiring a sign language interpreter.

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha and I have a Jolly Rancher in my mouth.

MATT: Could have just waited, and I’m Matt Staub, and I’m saying you could have just waited for however long it takes.

NASIR: I thought it would be melted by now.

MATT: What flavor?

NASIR: I don’t know if it melts. It’s sour apple.

MATT: Oh.

NASIR: I think the best flavor.

MATT: The worst, probably.

NASIR: Really? That’s the best. It’s the only one I think I really like.

MATT: Well, if you ever noticed – actually, I don’t know – maybe the green ones but it seems like every time someone has Jolly Ranchers on their desk or like, when you walk into a building, it’s always grape. No one ever has the grape ones.

NASIR: I actually like the grape and the green ones. All the red ones kind of just mash into each other like watermelon and cherry.

MATT: Yeah, you can’t decipher one. It’s just red. I mean, it should just be colors – cherry, strawberry, watermelon, raspberry.

NASIR: And blue.

MATT: Yeah. Blue is usually raspberry, I think.

NASIR: Yeah, but blue tastes unnatural – not that any of these others taste natural but…

MATT: Well, at least the sour apples are usually green.

NASIR: Yeah.

MATT: Not that the skin of the apple is produced in the Jolly Ranchers but, yeah, blue raspberry is obviously very unnatural.

NASIR: Yeah, exactly.

MATT: Not that any of them are very authentically flavored in terms of juice. Anyway, I don’t think that’s what we’re talking about today. Let me make sure. Nope, we’re not.

NASIR: Any smooth transition into this? I don’t think so.

MATT: No. I mean, there probably is, but I’m not going to even go for it. This is pretty interesting. I don’t know if we’ve ever talked about a sign language related issue before.

NASIR: No, and I know we haven’t because, if we did, I would have definitely mentioned that I took a couple of semesters of sign language in college which was awesome. I still know some of the basics so I can kind of eavesdrop on a lot of people’s conversations from a distance which is very rude and taboo.

MATT: Why did you take those classes?

NASIR: I have no idea. In fact, my wife asked me the same thing. Like, “I don’t know why you took those classes.” I met my wife in a foreign language class so I didn’t need it for a language credit. I think I just did it because I was interested in it.

MATT: That’s what I was going to ask because, my wife, they had to take some sort of language class and she opted for sign language but that wasn’t the case with you, I guess.

NASIR: No, I’ve taken first year languages – many, many different languages. I’m not fluent in any other language but I’ve taken a lot of first for like one year or so.

MATT: You basically can say “my name is…” in every language.

NASIR: Precisely.

MATT: “How are you?” and then just nothing.

NASIR: Correct – which I don’t know which is better – which I would rather be.

MATT: Fluent in one. Well, I guess fluent in multiple languages. I assume you’re fluent at least in English.

NASIR: Barely.

MATT: All right.

NASIR: I can say my name then that’s it. I can do an introduction of a podcast.

MATT: Ah. Well, anyway, this is a sign language based story we’re talking about which actually falls under disability which we’ll get to but let me tell some back story. This Starbucks in Arizona and I’ve read a couple of different stories on this so I’m going to pull the facts from one of them and, if it happens to be off, then I’ll blame this specific article but there’s a woman that worked at Starbucks from 2007 to 2014. That’s a pretty good amount of time. She was doing sign language from the beginning of 2007 throughout the duration of her employment and so she was working there, no problems. They provided reasonable accommodations for her to work there as they’re required to and as they have actually in their policy as well for employees. And then, it looks like in late 2012, there was a new store manager that came in and refused to give her a printed work schedule that she could read – sorry – refused to give her a printed work schedule and required her to read from a posted list which, for her, was difficult. I guess the issue was she could do sign language but she cannot fully read everything.

NASIR: I mean, even though she can lip-read and so forth, sign language is a completely different language and where you put the adjectives and the nouns in a sentence, it’s very similar to other foreign languages but it’s very different than English. I can understand what she means by that, you know, a little bit. But, obviously, without being born in that kind of community, it’s really hard to tell.

MATT: Yeah, exactly, and that’s I think, the first time I looked at it, I didn’t really understand it but then I thought about it and made sense because, if you’re just signing things, then why would you necessarily be able to read as whatever. So, 2013, she had some tattoos, they had this new tattoo policy that they put in place because she had some tattoos on her hands.

NASIR: And I think we covered that issue, didn’t we?

MATT: Yeah. So, we have actually kind of covered this before but I don’t know if it was this specific. No, I think we covered the policy in general. I don’t know if it was this specific person. She tried to comply, couldn’t because she couldn’t afford laser removal of her tattoo. This is just showing how much she wants to work at Starbucks. I mean, we’re kind of giving the history here and I guess they’ve since changed their policy it wasn’t an issue. Then, in January 2014 which is the last year she worked there, she received a negative work review. I guess she mixed up the dates at a meeting, something happened, the next time the managers brought in a sign language interpreter, I guess at whatever the final meeting was, she was fired.

NASIR: They brought in an interpreter to fire her basically it sounds like.

MATT: Yeah. It sounds like, at the beginning, they would provide whatever accommodations that she needed and then at some time in the last couple of years, it looked like when there was new management that got in there, that’s when things kind of changed and the same sort of accommodations weren’t supplied. The importance behind this is, you know, why I keep saying these certain words is they have to provide her reasonable accommodations to be able to perform her job with her disability of only being able to do sign language.

NASIR: Yeah, and this whole reasonable accommodation which applies to basically, from a federal perspective, 15 or more employees. If you’re in California, you have the federal employment housing act which is five or more employees. This whole “reasonable accommodation” is very misleading. I don’t know how many times I’ve had clients tell me, “Okay, well, what’s the standard?” and they read this, they go online and they read reasonable accommodation and they say, “Well, look, it’s not reasonable, it costs too much money.” The problem is that that’s not the standard. Whether you believe it costs too much money or it’s not reasonable, so to speak, is unfortunately not the standard. The devil is in the details. You really have to look into circumstances and it matters the size of your company, what’s the actual accommodation, and the most important part is going through that process which the point being is that this is not easy for anybody, including a large corporation like Starbucks.

MATT: You always like to use that phrase – “devil’s in the details.”

NASIR: Yeah, I’m obsessed with the devil.

MATT: The EEOC actually provides a few examples specific to sign language and one is an employer’s impressed with a resume they get, they find out the applicant is deaf, and they decide not to do the interview because they don’t want to have to bring in a sign language interpreter, that’s going to be a problem. They can’t do that. Another one is the employer offers optional training. The deaf employee wants to participate so they need to bring in a sign language interpreter. The employer doesn’t want to do that or provide that accommodation, that’s also not going to be allowable or allowed by the employer. I mean, those obviously are two I think more obvious examples. For someone that’s deaf, I think the reasonable accommodation is going to be able to provide somebody to be the interpreter between the employee and whoever. I think those are more straightforward. Now, I don’t think they’re asking to hire a whole second employee to follow this person around while they’re performing their job.

NASIR: And I think, in your first example, that’s what I think an employer would be scared of. Okay, they find out that the person’s requesting an interpreter and they’re like, “Okay, well, that’s not going to work out.” That doesn’t work. I mean, people that are hearing impaired are able to function in a lot of different job functions without having to have a 24/7 interpreter and there’s a million reasons. Forget about lip-reading, just technology alone or the different types of job functions. It’s an interesting trap that anyone can fall under. But what about Starbucks? I mean, they know the law and they have plenty of policies to prevent against these kinds of things.

MATT: Well, yeah, it’s funny because they have on their take of things, they have this creating a deaf-friendly environment course for all partners and offering sign language interpreting services for deaf partners and these are the people that work there as well as real-time captioning, communication equipment, video captioning, flashing strobe lights, signallers for emergency evacuation. Okay. They have this policy in place. I mean, it’s specifically in their own policy that they have for their employees. To me, what it sounds like is new management came in this particular store and just didn’t want to do it so it’s hard to really pin this on Starbucks.

NASIR: Let’s assume that, just for the sake of discussion, that this employee, her facts are correct and accurate and all that, this is not uncommon. You have a policy company top to bottom and you have it written down somewhere but then it’s all in the implementation and all you need is some rogue manager that either didn’t take the training seriously or chooses not to or wasn’t paying attention or whatever and now you have a lawsuit on your hands – not only a lawsuit but in a circumstance that is publicized on a national basis.

MATT: Yeah, that’s one of the interesting things here. She sued and is seeking damages. She’s also seeking to be rehired by Starbucks. Like I said, this is somebody that likes Starbucks so much.

NASIR: Yeah, she wants to work there.

MATT: Yeah, and the interesting thing is too, another thing with the tattoo policy, it seems like they tried to pin it on that but then they scrapped the policy. I’m not sure exactly what their reasoning is for ultimately terminating her. It sounds like she might have missed a meeting after she received a negative review and they were kind of going that route.

NASIR: It’s unclear whether that’s what she’s saying that originally they hired her or fired her because of her tattoos or something. I’m not sure if I’m getting a clear window to the facts but that’s definitely the allegation.

MATT: Yeah, that’s why I was saying there’s a discrepancy in what the underlying facts are. A spokesperson for Starbucks – sounds like someone in their corporate offices – was very confident about this lawsuit saying Starbucks has won awards for compliance with the Americans with Disabilities Act, including for ASL interpretation, so they feel pretty good about it. Like I said, as much as I dislike Starbucks, it’s hard to pin this on the company as a whole. Like you were saying, it’s more it could be an issue of a rogue manager coming in and saying, “I don’t want to do this. I don’t feel like it’s necessary. I don’t care what was happening before. This is what I’m going to do.”

NASIR: Yeah, and I tend to believe Starbucks in the sense of their culture, I think that probably sounds right. But, again, just because they have a great culture, a great program and policy in how they treat the deaf community, et cetera, creating what they say a deaf-friendly environment, that doesn’t necessarily mean that what this particular employee is saying is not true either. That’s what it comes down to. Frankly, this is tough stuff. I just can’t imagine on a managerial level, no matter how much training you provide, that you can really 100 percent prevent this stuff. I mean, I think even lawyers – unless they’re dealing with this on a very daily basis – has trouble with this because there’s so much ambiguity and so many different factors that you have to look at – not only dealing with people that are deaf but any kind of disability – both physical or mental.

MATT: Yeah, you’re exactly right, and this could just be poorly worded detail to facts but it’s saying that she relied on printed work schedules that the manager provided to report to work on time and then the new store manager refused to give her a printed work schedule and required her to read from a posted list.

NASIR: But when you say they refused to print it out, that honestly begs me to question, did he really refuse or was she like, “Oh, can you print this out for me?” “Oh, this should be fine,” and then that’s it? Because the fact that, like, what’s the big deal? In other words, either it was so easy that the manager refusing to do it is violating a law or, on the other hand, it was so easy, it seems hard to think that he would refuse to do so. It can go either way, depending upon who you’re arguing for.

MATT: Right, and that’s why I said it might just be the way it’s worded. To her, there’s maybe a huge difference between printing it off and reading from a list that’s somewhere else.

NASIR: Yeah.

MATT: But, yeah, it’s tough. What’s considered reasonable to accommodate her could be a tough call – even if you get training on it, I think you mentioned that, even if the manager gets training, it’s still a difficult call to make on these situations.

NASIR: Well, it’s funny. We’ve dealt with Starbucks in so many different ways. I mean, we’ve dealt with them with service dogs – allowing animals on the property. We’ve dealt with them with tattoos. Then, they have a no-gun policy. I’m not sure if we actually covered that in a podcast or an article. I can’t remember.

MATT: I think we did, yeah.

NASIR: Yeah, apparently they are a topic of conversation or go-to company for legal issues.

MATT: And, not to say it again, you can create all the policies you want. It’s more of the following the policy that’s really going to make or break it from a legal perspective.

NASIR: Yeah, no doubt. All right. Well, I’m finally done with my Jolly Rancher.

MATT: You can tell the episode’s done.

NASIR: Yeah, you could tell the episode’s done. I can now speak clearly without anything in my mouth so I appreciate everyone’s time. Thanks for joining us.

MATT: Yeah, keep it sound and keep it smart!

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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