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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I was put on notice for job performance issues. I work for

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I was put on notice for job performance issues. I work for a technology company and requires that I articulate their services and products. However, my boss noted I had a hard time with speech and articulation. Notice given on April 18th and ends May 18th. I discovered I have a physical impairment of speech caused by a chronic illness. I never had this particular issue, but looks like it has progressed to the point that it impairs my speech. I have been at this job for 5 months and boss said I fullfill the sales aspect of the job but not the part that requires for me to articulate and communicate a 1 hour demo. I am planning on telling them immediately since I found out. If I request reasonable accomadation via therapy, remedies , or medication to resolve this issue...can I still be fired?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear about your employment situation and your chronic illness.

To clarify, were you put on notice for job performance issues that relate to your inability to articulate words? Also, how many employees does your employer have?

I look forward to assisting you.
Customer: replied 2 years ago.
Yes, my boss was primarily concern with my communications and speach to relay services. Over 8000 employees
Expert:  Patrick, Esq. replied 2 years ago.
Thank you very much for clarifying.

Since you have been disciplined for deficiencies in your performance relating directly to your ability to speak, the sole issue would appear to be whether your condition qualifies as a "disability" pursuant to the Americans With Disabilities Act and thus is entitled to protection under the Act.

The determination of what constitutes a qualifying disability is a complex issue, but in general, in order to have a “disability” one must have a mental or physical condition that “significantly impairs a major life activity.” Speaking is considered a "major life activity" under the ADA, but in order for an individual who has trouble speaking to be protected under the ADA, the impairment must "substantially limit" the major life activity of speaking. This is a question of fact and must be decided on a case by case basis.

Although you have not indicated that your speech problem is a stutter, courts have closely analyzed the circumstances under which stuttering qualifies as a disability, and so those cases may provide some helpful insight to the applicability of the ADA to your particular speech impediment.

The court in Detko v. Blimpies Restaurant, 924 F.Supp. 555 (S.D.N.Y. 1996) held that the plaintiff's stuttering did not qualify as a disability under the Americans with Disabilities Act, reasoning that in order to invoke protection under the ADA, the plaintiff could not simply plead in his complaint that he "stutters." The Court stated that the plaintiff must specifically plead facts that demonstrate his stuttering comes under one of the statutory definitions of a "disability" as set forth in the Act. Specifically, the court said:

"A disability is defined as 'a physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . or being regarded as having such an impairment." 42 U.S.C. sec. 12102(2)(A). "Although speaking is a major life activity, see 29 C.F.R. sec. 1630.2(i), Detko has not alleged that his impediment substantially limits his speaking or that he is regarded as having such an impairment. To the contrary, he merely alleges that he stutters, and has particular difficulty with the letter 'M.'"

In contrary fashion, the court in Andreson v. Fuddruckers, Inc., Civil Action No. 03-3294, 2004 WL(NNN) NNN-NNNN(D. Minn., Dec. 14, 2004) held that a stutter did qualify as a disability under the act, reasoning as follows:

"Andreson has proffered sufficient evidence to create a genuine issue of fact as to whether her stuttering constitutes a 'disability' under the ADA. First, there is no dispute that speaking is a major life activity under the ADA. Second, Andreson has stated that her stuttering has caused her significant problems with communication throughout her life and she has submitted evidence indicating that her stuttering has significantly impacted her life activities. For example, Andresen claims that she avoids situations in which she is required to converse with others; when she does speak, there are times where she cannot get her point across. In addition, managers at Fuddruckers' also acknowledged the impact Andreson's stuttering had on her ability to communicate, testifying that customers sometimes had a hard time understanding Andresen, at times Andresen could not get her point across, and that they did not want Adresen interacting with customers because of her stuttering. . . . Third, Kathleen Dauer, a speech pathologist who evaluated Andresen, stated that Andresen's stuttering is of a severe form which substantially limits her oral communication. Specifically, Dauer opined that Andresen's stuttering behaviors 'are typical of a severe stuttering disorder.' . . .

". . . While the Court acknowledges that there is evidence in the record that may ultimately lead a fact-finder to conclude that Andreson is not substantially limited in her ability to speak, for the purposes of the motion before it, the Court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to Andresen. In addition, the Court does not agree with the premise that Andresen's stuttering is of small consequence to her life or the suggestion that one must be mute or incapacitated to be substantially limited in speaking. . . ."

So, if an individual in your circumstance can demonstrate that his or her speech impediment limits a major life function in accordance with the criteria set forth by the courts above, he or she would be entitled to a reasonable accommodation for that impediment that assists him or her in performing the essential functions of the job--in your case, the essential function of explaining your company's services and products to customers.

If your condition qualifies as a disability and your employer refuses to engage in an interactive process with you to determine what if any accommodation can be reached, or terminates you without providing such accommodation, an individual your circumstance would have a cause of action under both state and federal law for discrimination on the basis of a protected disability.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Expert:  Patrick, Esq. replied 2 years ago.
I should also add, an individual who believes he or she has been the subject of unlawful discrimination and wishes to file a lawsuit must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue an authorization to sue after they investigate the claim. A claimant need to file with both agencies. Finally, if an individual in your circumstance decides to sue, they must not miss their deadline. Under federal law in California, a claimant has 300 days from an act of discrimination to file a complaint.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to bring a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm
Patrick, Esq., Lawyer
Satisfied Customers: 7638
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
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