Labor & Employment Law Daily EEOC claims on behalf of deaf Big Lots worker mocked and called ‘retard’ to go to trial
Tuesday, October 2, 2018

EEOC claims on behalf of deaf Big Lots worker mocked and called ‘retard’ to go to trial

By Kathleen Kapusta, J.D.

Despite an employee’s testimony that her deafness did not limit her activities inside or outside of her work at Big Lots, hearing, speech, and communication are each major life activities in themselves and so the issue of whether she experienced any additional limitations as a result of those substantial limitations was legally immaterial, a federal court in West Virginia stated, finding her hearing and speech impairments were a disability under the ADA. And despite Big Lots’ assertion that the epithets “retard” and “stupid,” to which she was regularly subjected, were unconnected to her hearing and speech, courts have held the epithet “retard” is evidence of disability-based animus regarding hearing or speech impairments. Denying summary judgment against the ADA claims brought by the EEOC on behalf of the employee and a coworker who claimed she suffered retaliation for reporting the harassment, the court found Big Lots’ response to the alleged harassment was “grossly inadequate” (EEOC v. Big Lots Stores, Inc., September 27, 2018, Bailey, J.).

Completely deaf in her right ear and partially deaf in her left since birth, the employee had difficulty pronouncing “r” sounds and engaging in conversations without reading lips and people sometimes had difficulty understanding her speech. Since 2011, she worked as a part-time cashier and stocker at Big Lots and also performed many duties in the store’s furniture department. Her manager described her as a good employee and she met or exceeded expectations every year she worked for him.

Alleging that Big Lots, since May 2014, subjected her to harassment that created a hostile work environment based on her disability and that it retaliated against her and a coworker for reporting the harassment, the EEOC sued Big Lots under the ADA on behalf of both employees.

Disabled? Moving for summary judgment, Big Lots first argued that the employee was not disabled under the ADA. Disagreeing, the court found it readily apparent she had an actual disability, or at least there was a fact issue for the jury on that question. Her testimony that her deafness did not limit her activities inside or outside of work was not the relevant question. Rather, the issue was whether, without consideration of adaptive behaviors such as lip reading, her condition, manner, or duration of hearing, speech, or communication were substantially limited as compared to most people in the general population. And here, the evidence showed she was substantially limited particularly, but not exclusively, if the analysis applied the ADA requirement that her adaptive behavior of lip reading should be disregarded when assessing whether she was substantially limited in hearing. Finding that her hearing and speech impediments were sufficient to constitute a disability, the court noted that the ADA does not require a claimant be unable to work to support a claim.

Harassed because of disability. There was also evidence she was harassed because of her disability. She testified that four coworkers regularly and expressly referred to her deafness in derogatory ways while harassing her and that she suffered harassment expressly because of her hearing and speech impairments. And while Big Lots claimed the harassers’ use of “retard” and “stupid” were unconnected to the employee’s hearing and speech impairments, the employees also harassed her with overt references to her disability or mocked her manner of speech and hearing, giving rise to an inference that any harassment not overtly referencing hearing or speech was nevertheless motivated by that disability.

And that one or two of the alleged harassers may have occasionally mistreated other nondisabled workers did not show their treatment of the employee was unmotivated by disability-based animus, said the court, noting that the “ADA does not insulate employers from liability for disability-motivated hostile work environment simply because the perpetrators of the hostile work environment are occasionally mean to someone other than the disabled worker for other reasons.”

Severe and pervasive. As to whether the harassment was severe and pervasive, the court pointed to the harassers’ express insults regarding and references to the employee’s disability, their participation in harassing acts in which others referred to her disability, and their mockery of her hearing and speech limitations. This near-daily harassment caused the employee to want to avoid work and was sufficient to demonstrate a fact issue precluding summary judgment.

Liability. But it wasn’t liable for any of the alleged harassment, Big Lots argued, because it conducted an investigation in November-December 2014 in response to the coworker’s complaint to the district manager and then held a mass meeting where management read all of the companies’ existing employment policies. Finding this reasoning flawed, the court pointed out that despite repeated complaints of harassment to the store manager throughout 2012-14, he took no action. Thus, Big Lots became liable for the disability-based coworker harassment when the manager learned about it and chose to do nothing.

There was also evidence that although an HR rep conducted an investigation, she demanded corroboration as a precondition for taking any action against the harassers and even when she received corroboration, she dismissed it and deemed the complaint unsubstantiated. This, said the court, “was no doubt due in large part to Big Lots’ decision to place [her] in the positon of conducting harassment investigations but failing to provide her with adequate training on conducting investigations, investigative interview techniques, credibility assessments, and evaluating evidence.”

Grossly inadequate. Further, there was constructive notice of the hostile work environment. The HR rep’s questioning of witnesses was incomplete and perfunctory, she failed to ask some of the harassers whether they engaged in the conduct, questioned the complaining coworker for only five minutes, and failed to interview other coworkers. To the extent Big Lots claimed ignorance of the hostile environment, that ignorance was a product of its own negligence, said the court, noting that a reasonable employer exercising due diligence in investigating the harassment would have known of the hostile work environment.

Moreover, Big Lots response—holding a one-hour, all-hands meeting to read a plethora of existing company policies, most of which had no relevance to workplace harassment—was grossly inadequate. In addition, evidence the harassment of the employee resumed a mere two or three months after the meeting demonstrated the weak, ineffectual, and negligent nature of Big Lots’ response. And although the employee reported the resumed harassment, the store manager actively discouraged complaints to corporate officials.

Retaliation. As to the EEOC’s claim that after the coworker complained to the store and district managers in October 2104 she was subjected to retaliation, the court noted that as a result of the subsequent investigation, the HR rep gave a very negative critique of the store manager to corporate. Not long after that, the store manager gave the coworker an ultimatum concerning her known, long-term second job at USPS: leave it or leave Big Lots. When she asked why, he purportedly said “I told you we didn’t want them [corporate] down here.” Thus, said the court, there was a triable issue concerning Big Lots’ motivation.

Failure to promote. The EEOC also alleged disability discrimination and retaliation concerning Big Lots’ failure to promote the employee. With regard to the discrimination claim, the store manager’s statement to the employee and her coworker that he would select another worker, who was one of the alleged harassers, over the employee because she could “do the talking better” was evidence of discriminatory animus.

As to the retaliation claim, after Big Lots constructively discharged the coworker from her furniture department management position, the employee applied and was interviewed but despite her extensive experience, about a month after the conclusion of the harassment investigation, Big Lots promoted one of her harassers. This less than two-month period between the investigation, during which the employee reported harassment, and the denial of the promotion was suspect timing. In addition, there was no evidence prior management experience was required, and Big Lots and the store manager offered shifting explanations for their decision over time.

Punitive damages. Nor was Big Lots entitled to summary judgment on the issue of punitive damages, said the court, finding fact issues about the employer’s good-faith efforts to implement its anti-harassment policy. The store manager was not trained to effectively implement the policy and he willfully neglected to do so. The HR rep was also not adequately trained to implement the policy and, significantly, refused to take reasonable corrective action against the perpetrators of the harassment.

Injunctive relief. Finally, the court found Big Lots failed to show no reasonable probability of future ADA violations as both the employee and one of her alleged harassers are still at the store and often work the same shift. Further, the HR rep also remains employed at Big Lots in a position responsible for conducting disability and other harassment investigations, the court observed, noting that “it is questionable Big Lots has taken effective action reasonably calculated to ending the harassment at the Elkins store and deterring its recurrence.”

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