The Tenth Circuit recently upheld the firing of a deaf employee who cold not perform the essential functions of her job.  The employee worked at The Picture People, where a critical part of her job was communicating with customers.  She communicated by writing notes and gesturing.  A new supervisor deemed her communications “awkward, cumbersome, and impractical.”  She was eventually terminated.  The EEOC sued on her behalf, claiming the employer should have allowed her to communicate nonverbally with customers as a reasonable accommodation.  The court found, and the Tenth Circuit agreed, that the employee could not establish she was qualified for the position, with or without a reasonable accommodation.  It bought the employer’s argument that strong verbal communication skills were essential.

I have to admit – I’m a little surprised by this case.  But the employer did a very good job explaining why it considered verbal communication skills to be an essential job function.  It was listed in the job description and based on a particularized analysis of the job in question (which involved efficiently recruiting and registering customers for photo shoots and instructing young children during the shoots).  In short, the employer showed the requirement was job-related, consistent with business necessity, and uniformly applied.

This is definitely one of those situations where a call to counsel is critical.  Don’t make these “close calls” on your own.  I can easily picture another court going the other way on this one.