By Darrell R. VanDeusen
Jessica Chrysler is a congenitally and profoundly deaf individual who communicates with hearing individuals by writing notes, gesturing, pointing, and miming. She can also type, text message, and use body language. Chrysler was hired to take pictures at a photography store, usually of young children. She also was required to sell photo packages. When working with other employees who could hear, Chrysler could perform just fine because she would rely on those employees to help her communicate. But when she was by herself, or if another employee could not assist her, the communication problems were significant. Ultimately, finding that Chrysler’s ability to communicate was “awkward, cumbersome and impractical,” the company terminated her employment in October 2008.
The EEOC took up her ADA claim, arguing that the company failed to make reasonable accommodations for Chrysler. The district court granted summary judgment on the basis that Chrysler could not establish that she was qualified — with or without accommodation — to perform an essential function of her job: verbal communication. On appeal, a split Tenth Circuit agreed. EEOC v. Picture People, Inc., 2012 U.S. App. LEXIS 14092 (10th Cir. July 10, 2012). In a 2-1 decision, the court rejected the EEOC’s argument that the company was required to modify how Chrysler worked “to allow her to communicate with customers using non-verbal means of communication.” But an employer is not required to relieve an employee of an essential job function of a job, said the court, and the company established that verbal communication is an essential job function.
In dissent, Judge Holloway, believed that there was enough evidence in the record to let a jury decide whether the company’s decision was really based on the kind of stereotypes the ADA was designed to eliminate, rather than non-discriminatory reasons.