A recent decision from the Equal Employment Opportunity Commission has allowed a lawsuit against the U.S. Air Force to move forward as a class action suit. It involves a group of current, former and prospective civilian employees who are also deaf. They claim that the department did not provide some basic accommodations that it is required to by law, which made it even more difficult for them to communicate these concerns to management. To learn more about the case Federal Drive with Tom Temin spoke with Sean Betouliere, who is a senior staff attorney at Disability Rights Advocates, and Wendy Musell from the Oakland, California Law Offices of Wendy Musell.

Interview transcript:

Sean Betouliere Sarah Riemer, who was an attorney at the Nellis Air Force Base, reached out to us regarding some of the pervasive problems she’d been having, getting accommodations. It had taken months and months just to get something as basic as a video phone so she could make phone calls to other people in the Air Force as part of her job, something that she needs to do every day as part of her job. And the Air Force can’t even do something as simple as getting that to work. And she also, on multiple occasions, requested ASL interpretation or heart interpretation, which is essentially like transcription of conversations that are happening. And had repeatedly been refused, have been told that there was no money for that, despite the Air Force having billions and billions of dollars at its disposal. And she had also realized in the course of having these issues that she wasn’t alone, that there were people all over the Air Force at all different bases who were having the same problems, and that this was really a systemic issue all across the Air Force. No matter what base you were at, no matter who your supervisor was, that there were just these real issues with getting basic accommodations, and accommodations that other employers of all sizes provide every day to different place.

Eric White And Wendy, how did you get involved in this?

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Wendy Musell Sean reached out to me from disability rights advocates and asked if my firm would be interested in assisting representing the federal workers in the case. The federal system is quite Byzantine. They’re very short deadlines. For example, if an individual has been subjected to discrimination in the workplace, they have 45 days, if you can believe it, to raise those complaints. And the whole process, in my opinion, is not user friendly for those employees who have the bravery to come forward and raise these issues, and ask that the government live up to what they’re supposed to be, which is be a model employer. There are regulations that state the federal government is supposed to not only comply with the law, but be a model employer, and this clearly was not happening. So we were thrilled to join disability rights advocates, their leader, in making sure that systemic issues regarding disability rights are enforced. And we have a lot of experience in representing federal workers for discrimination cases. So we thought joining forces to ensure that systemic change that the Air Force becomes a reality. And one of the things that the Air Force, which I think is particularly egregious, is a lot of employees who are civilians used to be enlisted with the Air Force and may have lost some of their hearing, because of the work that they did serving our country. So when those same people come over to be civilian workers, and continue to serve our country and then are not provided with very basic accommodations, and frankly the dignity that they deserve just as an employee, but also as somebody who’s doing such important work, I think that deserves attention and it deserves change.

Eric White So talk to me a little bit about the process that you went through. The EEOC appeals court just affirmed the case and has issued a decision in your favor. What can you tell me about what the next step is and what the EEOC route signifies in the way that you took it?

Wendy Musell What happens when an employee makes a complaint is they have to go through a whole internal process, which can take a long time before you even have the opportunity to go to the EEOC for adjudication. And our clients, the class agents, did that. It took them, even before we got to the EEOC, sometimes years in which they weren’t even in some cases, provided accommodations for that process. So you can imagine if you’re deaf and you want to make an EEO complaint and the Air Force doesn’t even have accommodations so that you can make an EEO complaint, and yet it’s required as a matter of law. So after they went through the internal processes, we then filed with the EEOC, the EEOC was pending there for a few years. First, at the San Francisco office and then at the Los Angeles office. We had numerous rounds of briefing, and we provided mountains of evidence that show that there’s systemic problems with the Air Force providing these basic accommodations. We were thrilled with the decision by the administrative judge who very correctly saw that there are systemic problems that need to be addressed as it relates to civilians, applicants, employees and former employees, and that this case can proceed on a class basis with the class covering the entire United States and some bases that would be abroad, as well as the number of class members, is estimated either over 700 and could be as much as nearly 2600 members currently. So the Air Force did appeal that decision. The Office of Federal Operations, which is the appellate court of the EEOC, made this recent decision, which we’re thrilled, affirming the class certification and saying that the case can continue on a class basis, and that the case should go back to the Los Angeles office of the EEOC and proceed on a class basis.

Wendy Musell Additionally, there had been a persistent problem with the Air Force not complying with the court’s rules. This was noted in the decision that the Air Force simply, apparently considered itself above the law, not only with providing reasonable accommodations under the Rehabilitation Act, which is the law that is very similar to the Americans with Disabilities Act, but applies to federal employees. But they also felt they were above the law as it relates to complying with discovery obligations and violated order after order after order. And so the Office of Federal Operations, the OFO, had also required that they respond to one of the last orders that had been violated to provide additional documents that they had failed to provide. So our hope is this case can continue as expeditiously as possible so that we can make the change that these employees so deeply deserve.

Eric White Yes, Sean, that provides it’s a perfect segue into the question I was going to ask you, which is what are you all hoping to achieve with this? It’s a lawsuit, so obviously, there might be some sort of maybe compensation involved or something. But I think that the broader goal here is for the change that Wendy just mentioned. What from the disability rights advocates point of view are you all hoping for?

Sean Betouliere Yeah, I think that’s exactly right, that the broader goal is that kind of change. That’s really what our clients are in it for. They certainly have suffered some financial consequences. They’ve had their careers derailed. A couple of them have had to leave the Air Force, because they just couldn’t take going into work every day and not getting that sort of basic things that they needed to do their jobs. But all of them are really motivated to change things for other people and make sure that this doesn’t happen again. And so, in terms of what that looks like concretely, one thing we’re pushing for is for the Air Force to implement centralized funding for accommodations so that it’s not a question of, does your little individualized unit have the money right now to, let’s say, hire an interpreter, but really looking at, does the Air Force as a whole have the money? And the answer to that is always pretty much going to be yes. And that is how it’s supposed to work. That is how the law is written, that you look to the organization as a whole when determining whether they can afford a particular thing. So that’s one piece, the funding piece, because a lot of accommodations were just being denied because of funding or being delayed because of all the various bureaucratic levels that things had to go through.

Sean Betouliere There are other things like providing technology, there are consistent problems that the Air Force knows about with getting things like videophones or captioned telephones so that an employee going into the job can actually just make a simple phone call. So I think resolving those issues, making sure that the Air Force has a streamlined process for getting basic technology to work. There are issues for employees who have security clearances. The Air Force doesn’t have interpreters who have security clearances. So you have people who, because of their jobs, have to handle sensitive materials and they just have no way of doing that. No way of doing that portion of their job, because they can’t get these accommodations. There are persistent problems with the training materials. The Air Force will have required trainings where it’s like, watch this video and answer these questions or whatever. Those videos are not captioned. So deaf employers can’t engage in trainings. So really,  that’s a lot of detailed stuff. What we’re really looking for is systemic change to ensure that deaf employers can do their jobs just like any other employer. And, I kind of alluded to this earlier, none of this is very revolutionary. This is stuff that other employers do all the time. There’s no reason the Air Force can’t.

Eric White Yeah, on that. I mean, we’re not insinuating that obviously the Air Force doesn’t want to be able to tap into the talent pool of folks who just are disabled. So is it just that, from hearing the Air Force saying it was a budgetary concern was really their only concern. What held them back, I guess, from taking these, as you mentioned, seem to be pretty simple steps?

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Sean Betouliere We don’t know. I can’t speak for the Air Force and what the Air Force’s motivations are and what has been holding them back. One thing we learned in the course of this case from their former head disability program manager, someone who served in that capacity for eight years, is that she recognized these systemic issues. And she tried over and over and over and over again to make change and just hit a wall. So there seems to be just some bureaucratic inertia, some sense of, this is just the way that we do things and we’re not going to change probably some degree of this is not a priority. And we’re really hoping, and that this decision and this case will finally shake that loose and got the Air Force to do what it should have been doing all along.

Eric White Wendy, you’ll get the last word here from the law perspective. How is the law not been applicable? A federal agency as big as the Air Force has been able to skate by with not conforming to it.

Wendy Musell Well, they’ve been subject to these requirements of the law, and from our perspective, have been violating it for years while having absolute notice of the problems that are persistent across the entire Air Force for civilian workers. And for federal employers, they are subject to the same laws. Nobody is above the law. We don’t have a monarchy which exempts itself, generally speaking. And so, the federal government is subject to the same laws and they have to abide by them just like everyone else. And we’re simply saying do the right thing, follow the law, and in fact, be the model that you’re supposed to be. And we’re hopeful that for other agencies, which have decided, despite the fact that they’ve had decades and decades to come into compliance, simply to violate the law and to ignore the rights of disabled employees and specifically deaf or hard of hearing employees, that they take notice. There are employees who are brave enough to come forward to hold them to account. And there are law firms and disability rights organizations that will hold their feet to the fire.

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