HR Stories Podcast - where the Lesson is in the Story

Accommodation Tales - All He Wanted Was to be Treated Equally

October 15, 2020 John Thalheimer and Chuck Simikian, SHRM-SCP Season 1 Episode 5
HR Stories Podcast - where the Lesson is in the Story
Accommodation Tales - All He Wanted Was to be Treated Equally
Show Notes Transcript

We all have to attend meetings, but what if you couldn’t understand what is said.  For the deaf community in the United States, this can be a daily occurrence.  In this episode, we tell the story of Mauricio Centeno and UPS Supply Chain Solutions and how all he wanted was to be treated equally.

 Under the Americans with Disabilities Amendment Act require employers to provide individuals with a disability reasonable accommodations, not only so they can do their job but also so they can enjoy the certain benefits and privileges of employment.

Don't make the same mistake this company did. This episode of HR Stories Podcast is sponsored by www.GetHRHelpNow.com. They can provide consultation, coaching, and training for you and your team....virtually or live in-person.

Have an HR Story to tell? We may feature it in an upcoming Podcast. Email [email protected]


John Thalheimer:

Thank you for listening to HR stories podcast. The material presented in this podcast is for informational purposes only. Chuck and john always recommend using the employment lawyer to handle any legal HR issues. We do our best to double check sources. Make sure the information we are providing is accurate. We may eliminate or embellish without changing the basic narrative to make the story easier to understand. In certain circumstances, we may change in identifying information to protect the innocent. If you have any questions, please reach out, reach out to us at help at HR stories, podcast calm. Thank you for listening to the HR stories Podcast, where there is a lesson in every story.

Chuck Simikian:

Okay, we're going

John Thalheimer:

eautiful 5432. i'm john tall heimer.

Chuck Simikian:

And I'm Chuck Simikian. So, john, what is the story today? Well, you know, we all want to be treated equally at work. And that goes for the 6 million individuals with disability. However, many organizations, either intentionally or unintentionally, do not give people with disability the same opportunities as those without disabilities. Hmm, this is one such story. So before we introduce our main character, I want to talk to you about the importance of meetings at our organizations. Now, I know we all hate meetings, and we will make any excuse not to go.

John Thalheimer:

But they are really important. We as a place to share information. We discuss changes in policies, and we get to work, we get work done in our meetings. And so I think they're meeting I know where I'll get this frustration when meetings. And poorly run meetings can be a problem. But when we have good run, well run meetings, I think they're really important to organizations. So imagine that you attend a meeting in your office, and you cannot understand what is being said. What do you mean, not understand? Like,

Chuck Simikian:

I got a lot of meetings, and I have no idea what they're saying, and why I'm here. Yeah. So let's say you're

John Thalheimer:

going, let's say you go to a meeting. And that meeting is in a language you don't understand.

Chuck Simikian:

Okay.

John Thalheimer:

Right. And so you go to that meeting, and now you're sitting in there. I've had friends that have worked internationally, and they would go to staff meetings, and they would not know what was being said, right. So this is that's where our story is about our main character Maurice Maurice Santo. He works in a payroll division of accounting department ups facility, one of the requirements of the job was to attend all weekly and monthly staff meetings. And that those staff meetings, typical business information was discussed, including changes to employee benefits, quarterly earnings, vacation holiday schedules, new human resources, roll safety regulations, and so on and so on. Information sentinelle needed to do his job. But San Antonio could not understand anything being said in the meeting. He was death from birth, and his primary language is the American Sign Language. And so American Sign Language is completely separate and distinct from English. It has its own rules of pronunciation, word formation, word order. A person who primary language is ACL may find speaking, reading or writing English difficult. Imagine yourself trying to operate in a country again, where you can't speak the language. Right? Right. And so his managers and supervisors were totally aware of this primary language was ACL. And he only had a fourth grade grasp of the English language. So no one in this story disputes that centineo was doing a good job as a payroll account. No one, the concern here was whether ups provided centineo reasonable accommodations for certain benefits and privileges, privileges of employment,

Chuck Simikian:

benefits and privileges. Okay, so he's doing a great job. And I certainly understand the language. So what you're, what you're saying is, my language is English. My language is French. My language is Spanish. My language is Japanese. My language is American Sign Language. So if you look at it that way, I get it. I get it. But when you say benefits and privileges, I think I know what you're talking about and where you're going here, but continue.

John Thalheimer:

Yeah, so let me give you the definition that the EEOC use around the ADA right and so the ADA is American Disability Act, and it requires employers to provide reasonable accommodations so that the employees with disabilities can enjoy the benefits and privileges of employment equal To those enjoyed by similarly situated employees without disability, Ah, yes, right, right. And so benefits and privileges can be training. They can be services such as employee system program, credit unions, cafeteria lounges, gymnasium, auditorium, transportation parties or social functions.

Chuck Simikian:

Yeah, people don't think about that. But that is covered under the ADA. And now, I can think of a few examples. But I want to hear more about the story.

John Thalheimer:

Yeah. So So meetings fit under this rule of benefits and privileges? Absolutely. And so in this case, UPS agreed that the meetings are included under the phrase benefits and privilege employment. They didn't say, Oh, that's not true. They didn't argue that in court. What they argued was that the combinations that they were providing were aggregate adequate. So ups primary accommodation was written notes in English. So at first, the supervisor would recap the meeting from memory and send the documents and Tino via email, sent to express concern because he could not possibly participate in real time in the conversation he asked for and was denied the use of a CL ASL interpreter for the meetings He attended. Here isn't hearing his concern ups tried providing him with a contemporary record of the meeting, basically, one of his co workers would write out what was being said in the meeting. Now, can you imagine in the meeting, having somebody write out and trying to keep up now I used to I was I was on a board, and I was the secretary of the board. And I remember trying to keep up with everything everyone's saying, and it just became this mess. Right? Right. And so they tried to do that. But centineo said he could not understand what was going on became very frustrated.

Chuck Simikian:

So can I ask you a question. So what I hear you saying is, UPS is providing an accommodation, which they were supposed to do, they knew that they had to provide an accommodation. But the employee was saying, look, this accommodation is not working. So it sounds like ups then double down on the same accommodation. Say we're gonna give you more of what's not working.

John Thalheimer:

Yeah, basically, well, they're basically they tried to get it so that somebody was interpreting what was saying and then putting it in writing. And so they are working through that, right. But like the co workers handwriting was a problem, how fast he wrote what he paid attention to what they didn't pay attention to. So what ups did is they finally did approve an ASL interpreter from monthly meetings, but not the weekly staff meetings. And again, the supervisors started sending his Recaps of the meetings to centennial. So in frustration, so taenia said, You know what, I'm just not going to the weekly meetings, and always ended up being written up for us for verbal insubordination. So, outside of the meetings, he was still doing the job, and again, his job done. But there was inconsistency on how centineo was accommodated. For some conversation, he was provided an interpreter, and others who was not. In one instance, he was being disciplined for a dispute with a co worker, his manager, and HR asked him if he understood the documentation. He said, No, they asked him, I love this part. They asked him to circle the words, he didn't understand and handed him the dictionary. How could you imagine? Alright, so think let's say, I don't know what language is used?

Chuck Simikian:

Are you making this up? I mean,

John Thalheimer:

I'm not making that I be making this I am not making this up. Right. And so think about this, right? Think about, let's say you, you don't speak French. And so somebody, you're in a staff meeting, and they're giving you an interpretation, they give you a document in French and you say, do you understand that you're like, No, no, no, like, we'll circle the words you don't understand. And then they hear new a French to English dictionary,

Chuck Simikian:

for goodness sakes,

John Thalheimer:

right. And so that's basically what was happening in this case. So finally, finally, finally, he got so frustrated that he was not receiving a reasonable accommodation for the certain benefits and privileges of employment. He went to this EEOC. The EEOC came in investigated and filed a complaint alleging ups engaged in unlawful employment practices that failed to reasonably accommodate some Tinos of defect deafness. So I think for our listeners talk, I want to go back and make sure they understand what the ADA is or as we like to say the ADA. Right. So what is the ADA?

Chuck Simikian:

Sure, very simply, it is the Americans with disabilities or disabilities act or Americans with Disabilities Act, and it requires employers to provide reasonable accommodations and it sounds to me like ups was there, but not all. By the way, because it does require employers to engage in what's called the interactive process, where you come up with an accommodation. You work it out mutually with the employee. And then you try that accommodation. But the one thing that that, and I have to say it doesn't require them to follow the interactive process, but it is highly, highly suggested. But the biggest part of that is the evaluation process, where everyone should be getting back together and say, is this accommodation working? Yeah, and I think I didn't miss that here.

John Thalheimer:

Yeah. And I think in the interactive process, right, the first thing we always look at is, are we recognizing the accommodation? Are they recognizing that accommodation? And I think they were, I think they recognize that he needed accommodation, where I think they got misled, or didn't understand was that they ASL, American Sign Language was a completely separate language, where he could understand the written word. So I think that was it. And so that phrase, certain benefits and privileges employment, how does that play out? In this story? How have you seen it play out in other stories?

Chuck Simikian:

Sure, we would do annual Benefits Enrollment. And we would always have to have at least one class with a sign language interpreter. I mean, we would do PowerPoints, we would hand out information. But when we came down to the presentation, and actually having and I worked in hotels, we always had, you know, hearing impaired Deaf employees. So very familiar with how this works. If you were to take that beyond that particular disability, for example, you have to still provide, if you're going to have a party, let's say you're gonna have a party, but it's at a really cool place that's on the second floor of this building, with a fantastic view of the city. And oh, by the way, there's no elevator, but three of your employees are in wheelchairs, and they can't enjoy the party, then there's a concern, and you can't be an accommodation saying, we'll tell you what, we'll get you guys an umbrella and a little table and some streamers, put it downstairs in the hallway at the bottom of the staircase. And you can have your own party. So that is that is that is a an extreme example of what we're looking at. But anything training, any type of services that you offer, if you have a situation where you have to discipline or coach, or performance evaluation, whenever you're hearing impaired employees, you have to bring in the interpreter, especially if they requested and you can't run interference and say you don't really need that.

John Thalheimer:

So yeah, yeah. And in this story, it got in with that whole dispute is the one time he showed up, they had an interpreter, and then the next time they didn't, and they gave him the form, and he couldn't read it. And so a lot of times during his tenure at UPS, they would literally hand him a dictionary and say, well read what words don't you understand? And so again, understanding that the American Sign Language is in there. So Chuck, what's essential? What are the one of the central takeaways when it comes to Americans with Disability? What should I be paying attention to in my organization? What are some of the things I should be paying attention to?

Chuck Simikian:

Well, you need to definitely be paying attention to your job descriptions, the essential job functions, and you need to be very, very sensitive to anyone that has an accommodation. And if they say it's not working, or if you notice that it's not working, you need to be sensitive to have those conversations with that employee. You also have to be sensitive to the fact that they may not know the word accommodations, they may not realize that they have to request something. And it may just be a general conversation where they're saying, Hey, I can't understand some I can't do something I can't fit through this door. My you know, I have a back injury. I have a neck injury. It's it's limiting. I've had a situation maybe it's an illness. And if they say these things, and it's stopping them from enjoying the benefits and the privileges of employment, then you have to think Hmm, maybe that's an ADA request.

John Thalheimer:

Okay, so let's say I'm a small organization, I have 17 employees because Ada right. It's fitting Teen and above. Is that correct? Right? The teenage boys. Right? So let's say I have 20 employees. I'm not a big budget small budget company. Is there anything protecting me? Is there anything that I could look at to say, you know what, this is going to be an undue hardship on me?

Chuck Simikian:

Sure, sure. It's called the undue hardship. But it would have to to be a burden to the employer, it would have to be cost prohibitive. There's there's a whole there's a number of factors you have to be aware of. So yeah, you could say bringing in a sign language interpreter, at whatever, they're charging 4050 $100 an hour for these meetings, once a week, once a month. I can't afford that. And if you're going to take that approach, you better be willing to, to show an investigator why you can't afford that. But for the most part, especially when it comes to sign language interpreters, you have to you have to provide that that's, that's a key key aspect.

John Thalheimer:

Yeah. And one of the things that when you look at the case study that ups said was, look, if we hire a American Sign Language or interpreter for our staff, meaning that last an hour, we need to pay them for two hours. And so they were sort of saying, well, that's an undue hardship for us to have to pay once a week for two hours, when really we only needed them for a week. I gotta say, that doesn't seem to me like an undue hardship to somebody no to an organization like ups. Ralph was a smaller organization, I may see that. But a big organization like ups, I don't think would have that situation. Yeah.

Chuck Simikian:

And if I could just point out one thing, this doesn't mean that the accommodation that we're providing wouldn't work for another situation. So I've been in situations where writing back and forth, you know, I had Deaf hearing impaired employees come to my office to make a complaint. And I would ask, do you want me to get an interpreter in? And they would say, No, and they would write out and we would communicate back and forth via written notes. So once again, it all depends on the situation, every employer needs to evaluate every situation, as if it's a new and different situation for every employee.

John Thalheimer:

Yeah. And I think what's been really useful for me is I use asked jan.org a lot. So right, www askjn.org is a wonderful website where you can go in and go, Hey, this is the disability that they're saying that they have. And then you can see what possible accommodations you can make, which I just did some wonderful, sort of sets my mind at ease that I'm doing best practices when it comes to it.

Chuck Simikian:

Absolutely. And I know, we could talk forever about a variety of disabilities. But focusing back on on this again, the training the services, the party, the social functions, the the privileges of employment, what ended up happening with this employee?

John Thalheimer:

Yes, very good question. Right. And so at first ups actually won the case. Oh, well, you know, they came in and they said, Look, this is why we're, it's an honor. It's an undue hardship for us to have to do this, blah, blah, blah, blah. So, um, EEOC appealed. And so they went up to the Ninth Circuit Court of Appeals. And so they not only reversed the lower court ruling, but also held that the employers must provide reasonable accommodations to employees with disability, even if the accommodations are only for benefits in privilege, such as staff meetings are not essential functions of the job.

Chuck Simikian:

Interesting. Yeah. So

John Thalheimer:

that's a big one, right? I mean, yeah, that's a big one that we have to get away from, okay. Well, they they're doing the essential work everything, da, da, da, hey, oh, by the way, this isn't there. So what the Ninth Circuit said was that those staff meetings were an essential function of their job, right. And they had to do that. And so that's what it became really important. But I still think under the benefits and privileges, I think your example of the staff parties, or even your cafeteria, you need to think about those things and make sure that those individuals in the community, your community or your workplace, have the same benefits and privileges of other people as well.

Chuck Simikian:

Excellent. All right.

John Thalheimer:

And so just to go on, right, because I think we always talk about this, but I really wanted to kind of define the things that the UPS had to do based on this three year consent decree.

Chuck Simikian:

Oh, Three years. Let me hear it.

John Thalheimer:

Okay. So there's five, six things, designate an ADA coordinator to review and revise policies respect to reasonable accommodations, ensure that deaf or hard of hearing employees understand their rights to receive effective accommodations and do receive them. Right. And so that was something you're talking about, maybe they don't understand what's being said. And so they don't know. Right, right, taking it to a different level, engage in the interactive process with employees request accommodations, including face to face meetings, discuss potential accommodations, provide proper and thorough investigation of complaints of disability discrimination and or retaliation, conduct live sensitivity training on how to accommodate deaf and hard to hear individuals for all supervisors and managers with enhanced training for those in human resources and occupational health departments. create and maintain an accommodation log to track the handling of accommodations request, and finally post a notice of consent degree at each of their facilities.

Chuck Simikian:

Holy Heck, I gotta tell you, yeah, all they have to do is just provide the interpreter and be done with it. But now, they've learned their lesson.

John Thalheimer:

Yeah, right. And I think one of the things that I think you and I both believe in, is that we can learn from other people's stories.

Chuck Simikian:

Exactly right. We

John Thalheimer:

can learn there and so Okay, so Chuck, I'm gonna ask you, HR directors, what should they be doing? What are some of the things that I should be doing? When I after I hear this, what should I be doing?

Chuck Simikian:

Well, the first thing you need to do is educate yourself, I would go to ask gn.org, I would educate myself on what I, you know what I need to do if in case you're hearing this story for the first time, and you're like, I just don't get it. I never heard this before. You need to go further and educate yourself, tangibly, you're going to want to do a job description audit, to make sure they are compatible with ADA, I would say, you know, create an interactive process format, so that you, your HR folks, your management team, they all know what to do. When they get a request, you create a process, you keep it consistent, and you document it. And once again, stories like this. There are a lot of stories out there, folks. That's why we love HR stories podcast. So in doing interactive exercises, having discussions it's one of those situations, john, where it's not time spent, its time invested when you do these things. Yeah.

John Thalheimer:

Yeah. And I think so my final words for the day is really, it's not only you, right? It's not only you the listener going Okay, I got it, I hear what you're saying it makes perfect sense to me. But how do you take that back to your organization, to make sure that your managers, your executive team, your employees, understand ADA, and particularly in this case, the benefits and privileges of that. And so if you have a safety team, are they looking at these things to go, oh, gosh, I need to think about accommodating these individuals in my workplace. And so it's not just about us, we need to make sure the whole organization is willing to say, hey, ADA is there.

Chuck Simikian:

Right? You know, I was thinking, even safety team, let's say you create an office, and a lot of companies create offices out of old storage closets for someone. And if there's not the fire alarm with the strobe in that office, or they can't see that strobe, they shut their door, they can't hear the alarm, they can't see the strobe going off, then that is not a great situation to be in. So that's a that's a good point. That's a good point.

John Thalheimer:

Yeah. Okay, so what are your final words?

Chuck Simikian:

My final words, yo, listen to these stories, follow our guidance, and move forward. You've got to protect your company, and you've got to do the right thing. So this is a this is an example today, of not only just protecting your company, but it's doing the right thing. What are your final thoughts?

John Thalheimer:

Um, yeah, so just kind of sum it up. I think, as I walk away from it, as I did this story, I have to say, throughout my honesty here is that I was surprised about the whole benefits and privilege of employment. I you know, cuz I was reading this story, and I'm like, but he can do his job. Well, they're accommodating in his job. So why why is this a problem? And so I didn't know. Right? And so as you investigate, and you learn, I think one of the things we're always doing, we're always learning and so This was new to me. And I'm really glad that we had this opportunity to story.

Chuck Simikian:

JOHN, this is a great story today. And the reason it's a great one is because it brings to light an aspect that many employers aren't aware of when it comes to the ADA. So thanks for bringing it to all of our attentions.

John Thalheimer:

Oh, you're welcome and everyone. Thank you for listening. Remember, there is a lesson in every story. Thank you for listening to HR stories podcast. The material presented in this podcast is for informational purposes only. Chuck and john always recommend using the employment lawyer to handle any legal HR issues. We do our best to double check sources. Make sure the information we are providing is accurate. We may eliminate or embellish without changing the basic narrative to make the story easier to understand. In certain circumstances, we may change in identifying information to protect the innocent. If you have any questions, please reach out. Reach out to us at help at HR stories podcast calm. Thank you for listening to the HR stories Podcast, where there is a lesson in every story.