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Case of the Month: November 2009

Discrimination charge by deaf sheet metal worker against union leads to $48,500 settlement

CASES 51720, 51721 CLOSED 11-17-09

Charging Party

Michael Sherman
St. Paul MN

Respondents

Sheet Metal Workers Int'l Ass'n Local #10 (Case 51720)
Metropolitan Area Sheet Metal Workers Joint Apprenticeship and Training Committee (Case 51721)

His deafness made him a danger on construction sites, his union argued. But the union's failure to explore possible reasonable accommodations violated the Human Rights Act, the department's investigation found.

What the Charging Party Alleged

As a dues paying member of Sheet Metal Workers Union Local 10, Michael Sherman had logged over 4,400 hours in the union's apprenticeship program, and believed that his deafness would not be a barrier to working in the field on construction sites. However, his union, which is responsible for placing workers in open positions, believed that his disability would pose safety risks. Sherman learned in August of 2007 that his union had decided to prohibit him for working in the field, and that he had repeatedly been passed over for jobs in favor of non-disabled workers who were lower on the union's job placement list.

Sherman believed that he was capable of working in the field, and met with union officials in November and December of 2007, with the aid of a sign language interpreter, to press his case. Again he was again told that his disability prevented him from working in the field safely, and that he would only be allowed to work in the shop.

In May 2008 Sherman filed charges with the Department of Human Rights. He argued that his union had made no attempt to determine whether a reasonable accommodation would allow him to work in the field safely, that he and all other members of Local 10 who were deaf had been denied field positions, and that he had frequently been without employment as a result.

What the Department’s Investigation Found

In answering the charges, the union argued that the ability to communicate orally was an essential function of the job in the case of field work, and that because Sherman could not do so, there was no accommodation that would have made Sherman and his coworkers safe. It offered examples of particular tasks it believed Sherman could not likely perform, where workers must cooperate without being able to see each other. It also argued that Sherman had known as early as May 2006 that the union had decided to bar him from field work, but that Sherman had not filed his charges within the one-year statute of limitations required under the Human Rights Act, and thus his claim was no longer timely and could not be pursued.

The department's investigation found that stereotypes about deafness had led to a feeling among local industry professionals that deaf persons should not work in the field, and that Sherman may have been unable to perform some field tasks. But he could have performed other field tasks, and the union had not distinguished between those job functions that were essential—such as perceiving a warning—and the common methods of performing that function, such as hearing a beep. There was no evidence that the union had explored alternative means of performing those tasks, such as a pager that would vibrate in response to a warning beeper. There was also no evidence that the union had consulted with experts with knowledge of the issues surrounding deafness and available assistive technologies.

The burden was on the union to prove its contention that Sherman could not have met the requirements of the job with a reasonable accommodation, and the union had not done so, the department concluded. As to the union's claim that the one-year statute of limitations had run out, the department disagreed. There had been discussions of Sherman's perceived limitations as early as April 2006, but there was no record of formal action at that time, and Sherman did not learn until later that he would never be assigned to field work, the department determined. The department found probable cause to believe that the union had discriminated against Sherman in employment because of his disability, and that its training committee had discriminated against Sherman in the area of education.

In a settlement negotiated with the Department of Human Rights, the Sheet Metal Workers Int'l Ass'n Local #10 and the Metropolitan Area Sheet Metal Workers Joint Apprenticeship and Training Committee agreed to pay $48,500 to Sherman and his attorneys. The respondents also agreed to conduct a training session for managers, supervisors and human resource personnel regarding employer obligations under the Human Rights Act, including information about disability; and to re-examine their policies and procedures regarding reasonable accommodation of persons with disabilities; and to revise those polices where necessary. The respondents deny violating the Human Rights Act or any wrongdoing.

The Department of Human Rights publishes information about selected cases and settlement agreements, including its "Case of the Month," as part of its mandate under the Human Rights Act to "educate to eliminate" discrimination. Settlement agreements do not constitute an admission of any liability, an admission of a violation of the Minnesota Human Rights Act or any other law, or an admission of wrongdoing by the respondents.

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