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Friday, May 18, 2012

Qualified Deaf Applicant Wins ADA Case Against Temp Service

By Tommy Eden, Attorney

Service Temps of Dallas, Texas refused to hire Jacquelyn Moncada for a stock clerk position, despite her qualifications and experience, upon learning that Moncada was deaf. Through a sign language interpreter, Moncada attempted to explain to the company that she was fully capable of performing the job and that she had several years of stock clerk experience. The company refused to conduct an interview or consider Moncada for the position. A Service Temps manager explicitly told Moncada that she would not be hired because she could not hear.

The Americans with Disabilities Act (ADA) prohibits disability discrimination and requires employers to make reasonable accommodations for employees’ and applicants’ disabilities as long as this does not pose an undue hardship.

On Sept. 22, 2010, a Dallas jury of three women and seven men in the case of EEOC v. Service Temps, Inc. d/b/a Smith Personnel Solutions returned a verdict against the employer, finding that the company violated the ADA by refusing to hire Moncada because of her disability. The jury awarded Moncada money damages for lost wages and emotional harm and an additional amount in punitive damages totaling $103,200, plus interest. The district court also granted the EEOC’s motion for an injunction, ordering that Smith Personnel be prohibited from discriminating against persons who are disabled, regarded as disabled, or having a record of a disability. Smith Personnel subsequently appealed the decision to the U.S. Court of Appeals for the Fifth Circuit.

On April 26, 2012, the Fifth Circuit Court of Appeals issued a ruling rejecting all of Smith Personnel’s arguments on appeal and affirming the monetary award. The Fifth Circuit further noted that the EEOC had presented evidence at trial demonstrating that Smith Personnel’s manager, who had hiring authority, was employed in a managerial capacity and acted within the scope of his employment when he did not allow Moncada to apply for a job, even if that act purportedly violated company policy.

Common Sense Counsel: ADAA claims of “Regarded as Disabled” can affect every employer with 15 or more employees. Making sure you are training managers who have hiring authority on the Dos and Don’t of their ADA obligations interview would have been good counsel for this employer. Supervisory ADA Training, New Interview Procedures, New Interactive Accommodation Steps, Handbook Updates, and Job Descriptions listing Essential Functions (i.e. being able to hear and respond to warning and instructions in a warehouse environment) are strongly encouraged for both temporary service employers as well as all Alabama employers. Otherwise expect the EEOC’s deaf ear to your Statement of Position.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540 or Alabama Immigration updates at