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Archive for the category “My Articles: Deaf Issues”

A Collection of Deaf Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of deaf law issues.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

USPS Listens to Deaf Employees’ Claims

The matter of Hubbard v. Donahoe, Civil Case No. 03-1062, U.S. District Court for the District of Columbia, is a class action lawsuit that pits the United States Postal Service against its deaf and hard-of-hearing employees.

The Equal Employment Opportunity Commission brought a class action suit on behalf of various deaf employees USPS alleging that the USPS denied them communication accommodations (e.g., American sign-language interpreters), especially during meetings, refused to provide them a TTY for telephone communication, failed to give them emergency evacuation notification systems, did not promote them or provide assistance in their effort to get promoted, and subjected them to a hostile work environment as a direct result of their disabilities.

After about 10 years of litigation, the parties have finally submitted a class action settlement agreement to the District Court for $4.55 million.

Over the course of my life, I have been involved in the deaf culture in one way or another and I have learned that although most people think of not being able to hear as the disability of a deaf person, the challenges the deaf have in the simplest act of communication with a hearing person are perhaps the disability that most impacts their lives each day. The inability to effectively communicate serves to isolate the deaf person – likely the only one at a given employment location – and therefore completely separate him from the rest of his co-workers. Therefore, failing to provide an interpreter or basic emergency systems or even a telephone (i.e., TTY) compounds a deaf person’s disability and enhances his or her isolation. I can think of few things that would make a work environment more hostile than near complete isolation.

Regardless of the merits of the case, it reminds us that those with disabilities are equal members of our society and our workforce and all have value. A case like this serves as an important reminder that employers all have the obligation to ensure that they honor their responsibility to take reasonable measures to accommodate the disabilities of their employees and to ensure that the workplace is one in which the employees feel comfortable.

Originally published in The Legal Intelligencer Blog on March 22, 2013 and can be found here.

Hearing from the Deaf

recently discussed in this space how technology has aided attorneys in their representation of the deaf. Since that time, I have received some feedback that I think is worthwhile to share.

When it comes to language, while the deaf and hearing use the same written form of English, when “spoken,” American Sign Language employs very different forms of syntax, expression, word order and grammatical structure as compared to spoken English. As a result, sometimes, especially with deaf people older than the so-called Generation X, the norms of spoken American Sign Language become intermingled with a deaf person’s written English, often to the extent that it causes a language barrier. Therefore, practitioners must be sensitive when communicating with a deaf person and realize that sometimes written communication may not be as effective as it would be with a hearing person.

In addition to the above, a common misconception among the hearing is that the deaf can simply lip read in order to effectively communicate. Unfortunately, lip reading is a very inexact science, withmany words unsuccessfully read during a typical conversation. Even if the general gist of an attorney’s point is communicated, this is insufficient, as legal advice is generally fairly complicated and requires, as much as practicable, the full understanding of the client and not simply getting the gist across. Besides, not all deaf people have the skill of lip reading; presuming that they do is simply a hearing person’s stereotype of the deaf.

The Americans with Disabilities Act prohibits an attorney from denying services because of an “absence of auxiliary aids and services.” These services include a sign language interpreter; however, a firm is not required to use an interpreter if it would result in an “undue burden.” While the cost for the interpreter is to be absorbed by the attorney, an attorney may bill for the extra time it may take to effectively communicate with a deaf client. In order to offset some of these costs, the Pennsylvania and Philadelphia bar associations established the Interpreter Access Fund. In addition, it may be possible to secure a tax credit for an attorney’s special expenditures to serve a deaf person pursuant to the Disability Access Credit.

Finally, a variety of organizations exist to help the deaf navigate the legal system and achieve justice. These organizations include the Disabilities Rights Network, the Pennsylvania School for the Deaf, the Legal Clinic for the Disabled, the National Association for the Deaf, and deaflegal.org. It is worthwhile for an attorney to investigate each of these if one intends to represent the deaf on a regular basis.

Originally published on May 18, 2012 in “The Legal Intelligencer Blog” and can be found here.

Justice is Blind, But is it Also Deaf?

Justice is supposed to be blind, but can it also serve the deaf? One of the most legally underserved groups in America is the deaf. The deaf community is enigmatic. It is said that Americans and the British are separated by a common language. The relationship between the hearing and the deaf is similar; although both speak a common language, they are separated by vastly different modes of communication, which creates a challenge for a hearing attorney attempting to represent a deaf client.

Over the years, technology has made it possible to improve communication between the hearing and the deaf. In the second half of the 20th century, the teletypewriter (TTY) and telecommunication device for the deaf (TDD) were invented, which enabled the deaf to communicate with one another over telephone lines through a typewriter-like apparatus. The deaf and hearing could speak to one another over the telephone by calling 711. 711 called a relay service where a hearing person, using a TTY/TDD, would type the hearing person’s words to the deaf person and read the deaf person’s words to the hearing.

With the advent of the Internet, the ability of the hearing and deaf to communicate with each other has advanced exponentially. The deaf first, like the hearing, used e-mail to great effect. However, it was the introduction of instant messaging that truly brought the deaf community into the 21st century. Whether it is through AOL IM, Yahoo messenger or MSN messenger, or newer software like Skype, typed communication between the deaf and between the deaf and hearing has become nearly instantaneous and extremely convenient. Instant messaging, almost single-handedly, has led to the near-obsolescence of TTY and TDD communication.

Instant messaging now includes the use of webcams. As the deaf communicate visually through their hands, web-camming while instant messaging has completely revolutionized deaf communication. Advancing even further, now the deaf can call one another over the telephone using their televisions to serve as videophones, a la Star Trek. Using videophones, much like the now-antiquated 711, the deaf and hearing can communicate through a relay service where the deaf person signs to an interpreter over videophone and the interpreter speaks to the hearing person over a standard telephone. Indeed, technology has now reached such heights that a hearing person can call a deaf person over the videophone relay and a deaf person can now answer himself using the internal camera and screen on his smartphone to communicate over videophone.

Needless to say, opportunities for communication between the hearing and the deaf are greater than ever in human history. These technologies should make it possible for a hearing attorney to be able to serve the deaf community better than ever and the practitioner can easily avail himself or herself of them as they are all now standard elements to any Internet service.

Originally published on March 6, 2012 in “The Legal Intelligencer Blog” and can be found here.

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