This article is based on a presentation by the author at the National Stuttering Association's 2009 Conference and Research Symposium in Scottsdale, AZ, July 2009.
In competing for employment or advancement, people who stutter (PWS) often find themselves at a distinct disadvantage. Many of us have languished for years in undesirable, low-level, or marginal jobs, while watching less-qualified fluent individuals move ahead in their careers.
Studies have shown that 85 percent of employers agreed that stuttering decreases a person's employability and opportunities for promotion. Hurst, M.I. & Cooper, E.B., Employer attitudes toward stuttering, Journal of Fluency Disorders, 8, 1-12 (1983).
Vocational rehabilitation counselors reported that stuttering was vocationally handicapping. Hurst, M.I. & Cooper, E.B., Vocational rehabilitation counselors' attitudes toward stuttering, Journal of Fluency Disorders, 8, 13-27 (1983).
Surveys of people who stutter have reported high rates of unemployment, discrimination in attaining employment, and denial of promotions because of stuttering. Opp, K.L., Hayden, P.A., & Cottrell, G.T., Stuttering and employment: A survey report, Annual Convention of ASHA, Boston, MA (1997).
In another study:
During my years with the NSA, I have heard from PWS who:
I've heard from PWS who were denied jobs (or even interviews), on grounds that
the job required "excellent oral communications skills." Often this was simply
because the job occasionally involved answering the telephone or speaking to
people. One woman was even denied a job as a typist in a typing pool - on the
grounds that employees were expected to take turns answering the telephone when
the receptionist was on her lunch break.
Most PWS are capable of adequate - and often very effective - oral
communication, regardless of their disfluency. However, if stuttering
disqualifies them from every job that involves some speaking or use of the
telephone, they will be excluded from vast areas of the job market - and
particularly from the most desirable jobs.
greatest obstacle to communication comes when we feel compelled to hide our
stuttering out of fear of reprisal. For employers to demand fluency as the
price of one's job only creates a vicious spiral of stress and anxiety that
makes stuttering worse.
are subject to negative stereotypes that have significantly harmed their
employment and promotion opportunities. These stereotypes include the widely
accepted impression that stutterers are nervous, shy, quiet, self-conscious,
withdrawn, tense, anxious, fearful, reticent, and guarded. See, e.g., Hurst,
M. I., & Cooper, E. B., Employer attitudes toward stuttering, J. Fluency
Disorders, 8, 1-12 (1983); Woods, C. L., & Williams, D. E., Speech clinicians'
conception of boys and men who stutter, J. Speech & Hearing Disorders, 36,
225-234 (1971); Woods, C. L., & Williams, D. E., Traits attributed to stuttering
and normally fluent males, J. Speech & Hearing Research, 19, 267-278 (1976).
People often assume that PWS stutter for the same reasons that cause occasional
disfluency in non-stutterers B e.g., nervousness, uncertainty, emotional
distress, etc. Therefore, they assume that the PWS is experiencing the same
things, but to a greater degree. See, e.g., White, P. A., & Collins, S. R. C.,
Stereotype by inference: A possible explanation for the "stutterer" stereotype,
J. Speech & Hearing Research, 27, 567-570 (1984).
NSA member was denied a promotion by the U.S. Weather Service because his
supervisor incorrectly assumed, on the basis of his stuttering, that he lacked
the ability "to make rapid fire judgments, think quickly and demonstrate
The Impact of Stuttering
occurrence and impact of discrimination may vary from person to person depending
on a variety of factors - such as the severity of stuttering, the kind of work,
and the marketability of the individual's other skills. Some stutterers say
that they have never encountered employment discrimination.
Many people have achieved success despite their stuttering B including jobs in business, law, medicine, science, literature, entertainment, and even politics.
Combating Stuttering Discrimination
What can be done to combat stuttering discrimination?
First, each PWS can be his or her own advocate in the battle against
discrimination. Suggestions include:
Organizations like the NSA and the Stuttering Foundation of America have been
active in educating the public.
Legal Protections for Persons with Disabilities
a last resort, PWS may pursue legal remedies to challenge acts of
discrimination. In the U.S., a number of state and federal statutes now
purport to outlaw discrimination against persons with handicaps or
disabilities. These include:
Each statute has its own specific terms, applicability, and procedures, which
must be followed precisely.
Should We Call Stuttering a "Disability"?
Many PWS dislike being called "handicapped" or "disabled." Of course, we know
that stuttering need not be a handicap. But the purpose of these laws is to
protect us from discrimination by people who aren't so enlightened.
qualify for legal protection, we must therefore be open and "up front" about our
stuttering. Te worst mistake would be to try to hide your stuttering in a way
that truly interferes with your job performance (such as by not talking,
avoiding the phone, etc.). This might give the employer a legitimate excuse for
firing you - even if stuttering itself wouldn't be.
The Americans with Disabilities Act of 1990
Americans with Disabilities Act (ADA) was passed by Congress in 1990 (42 U.S.C.
''12101 et seq.). Most parts went into effect in 1992.
Title I prohibits private employers, state and local governments, employment
agencies, and labor unions from discriminating against qualified individuals
with disabilities in
Is Stuttering Covered by the ADA?
first question that must be addressed is whether or not a person's stuttering
qualifies as a "disability" under the ADA.
It is true that "stuttering" is not specifically mentioned
in the Act. The ADA does not list any specific conditions by name as
"disabilities." This is because Congress did not want to limit the scope of
How "Disability" Is Defined in the ADA
When originally passed, the ADA did not define "physical or mental impairment," "substantially limits," or "major life activities." These terms were subsequently defined in federal regulations promulgated by the EEOC to include:
Is Stuttering Covered as a Disability?
Stuttering arguably fulfilled the definition of a "physiological disorder" or
"condition" that affects the "speech organs" and that limits an individual's
ability to participate in the "major life activity" of "speaking."
However, in order to come under definition (A), the individual had to prove that
his stuttering was a "substantial" impairment. This had to be decided on a
case-by-case basis. While severe stuttering might be considered a substantial
impairment, mild stuttering probably would not.
Stuttering in the Federal Courts
question of whether PWS are entitled to legal protection has been argued in the
case used against PWS was Detko v. Blimpies Restaurant, 924 F.Supp. 555 (S.D.N.Y.
1996). However, the Court did not hold that stuttering could not qualify as a
disability under the ADA. The Court dismissed plaintiff's complaint because he
simply alleged that he "stutters," without pleading additional facts to show
that his stuttering came under one of the statutory definitions of "disability"
set forth in the ADA.
Other cases were dismissed because plaintiffs failed to show that their own
stuttering was a "substantial" impairment or that they were qualified for the
jobs in question, or on technicalities. These decisions did not rule out the
possibility of stuttering discrimination cases in general.
number of stuttering discrimination cases were successfully settled before
trial, but these were not legal precedent because they did not result in
published judicial opinions.
Andreson v. Fuddruckers, Inc., Civil Action No. 03-3294, 2004 WL
2931346 (D. Minn., Dec. 14, 2004), specifically held that stuttering could
qualify as a disability under the ADA.
restaurant worker filed an employment discrimination suit under the ADA,
claiming that she had been fired because of her severe stuttering. The employer
moved for dismissal on the grounds that she was not "disabled" within the
meaning of the ADA. The Court denied employer's motion, holding that the
employee could proceed with her claim based on stuttering.
In its opinion, the Court stated:
nIn Hartman v. Nat’l Board of Medical Examiners, 2010 U.S. Dist. LEXIS 27691 (E.D. Pa., Mar. 9, 2010), the U.S. District Court for the Eastern District of Pennsylvania specifically recognized that severe stuttering qualifies as a disability under the ADA, entitling the plaintiff to a “reasonable accommodation.”
nThe plaintiff was a fourth-year medical student with a “profound stutter” who had completed all his requirements for graduation except for a Clinical Skills examination involving oral communication with patients, both in person and by phone. nThe plaintiff requested double time for each patient encounter, replacement of telephone encounters with in person encounters, and use of a text-to-speech device during in-person encounters. nThe Court granted the plaintiff’s motion for a preliminary injunction, but allowed the Board to administer the exam both with and without the text-to-speech device.
Must Be Qualified for the Job
PWS must also prove that he is "qualified" to perform the "essential functions
of the employment position that such individual holds or desires" with or
without reasonable accommodation. The ADA states that "consideration shall be
given to the employer's judgment as to what functions of a job are essential,
and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job." ADA, section 12111(8).
The Big "Catch 22"
The "Regarded As" Option
other words, a PWS could argue that his stuttering does not prevent him from
performing the essential speaking requirements of the job, but that the employer
rejected him because of myths, fears, and stereotypes associated with
Hostile Work Environment
Courts have recognized the right to bring claims under the ADA based on a
"hostile work environment." See, e.g., Fox v. General Motors Corp., 247 F.3d
169 (4th Cir. 2001).
ADA plaintiff must prove the following to establish a hostile work environment
Judicial Road Blocks
When first enacted, the ADA looked like a potentially powerful weapon against handicap discrimination. Unfortunately, the definition of "disability" was interpreted very narrowly by the U.S. Supreme Court, severely reducing its effectiveness. The two major Supreme Court case limiting the definition of “disability” were Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); and Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).
study by the American Bar Association revealed that plaintiffs prevailed in less
than 10 per cent of the cases brought under the ADA. Most cases were thrown out
of court even before trial, usually on the grounds that the plaintiff did not
meet the statutory definition of an "individual with a disability," and
therefore was not covered by the Act.
Many of these court decisions, if allowed to stand, could have seriously
undermined legal protections for people who stutter.
Sutton, the Supreme Court held that determination of whether a person's
impairment substantially limits a major life activity must be made with
reference to measures that mitigate the person's impairment, such as medication,
corrective devices, or auxiliary aids.
a result, lower appellate courts have held that persons with epilepsy, diabetes,
or ADHD which is controlled by medication are not protected under the ADA.
v. Wal-Mart Stores, 297 F.3d 720 (8th Cir. 2002); Mancini v. Union Pacific R.R.,
98 Fed.Appx. 589 (9th Cir. 2004); Knapp v. Columbus, 192 Fed.Appx. 323 (6th
This interpretation could have disqualified PWS who use medication, devices like
SpeechEasy, or fluency-enhancing techniques to reduce their stuttering.
Strict Interpretation of “Substantially Limits”
Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002), the U.S. Supreme Court held
that "major life activity" and "substantially limits" must be strictly
interpreted. "Substantially limits" was interpreted to mean "prevents or
Following this approach, one Circuit Court held that a person who lost one arm
was not disabled because he was still able to use his other arm. Carr v. Publix
Super Markets, 170 Fed.Appx. 57 (11th Cir. 2006).
This interpretation could have excluded all but the most severe stuttering from
Lower appellate courts have also disqualified persons who had learned to cope with their disabilities. For example, a person with muscular dystrophy who had successfully learned to live and work with his disability was held not to be protected under the ADA. McClure v. General Motors Corp., 75 Fed.Appx. 983 (5th Cir. 2003).
Intermittent Limitations Excluded
Some courts held that conditions that cause intermittent seizures (such as epilepsy) or sporadic limitations are not "disabilities." E.g., Corley v. Dept. of Veterans, 218 Fed.Appx. 727 (10th Cir. 2007).
New Proof Hurdle for “Regarded As”
In Sutton, the Supreme Court also held that, to establish coverage under the "regarded as" definition, an employee must show not merely that the employer thought that he had an impairment, but he must also prove that the employer thought that he had an impairment that substantially limited a major life activity. This would have required proof of what the employer subjectively believed about the impact of stuttering on a person's life.
ADA Amendments Act of 2008 (ADAAA) - which became effective on January 1, 2009 - was passed by Congress to reverse many of the limitations imposed by the Supreme Court and other courts. It re-establishes a broader definition of disability and contains provisions that may strengthen protections for PWS. In addition to amending the ADA, the Act also extends the same amendments to the Rehabilitation Act of 1973.
The ADAAA specifically repudiates the Supreme Court decisions in Sutton and Toyota that had narrowed the definition of "disability." The ADAAA states that:
Speaking as a Major Life Activity
Under ADAAA guidelines, "substantially limits" may include restrictions that are
less than "significant" or "severe."
In considering whether a person has a "disability," it is generally not appropriate under ADAAA, to consider whether "mitigating measures" are available or used to lessen or eliminate the impact of the impairment. Exceptions are ordinary eyeglasses and contact lenses.
Under the ADAAA, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Therefore, stuttering could still be considered a disability, even if the person is able to speak fluently some of the time.
Under the ADAAA, a person who asserts a "regarded as" claim is not required to
show that the impairment is perceived to substantially limit a major life
Person will be "regarded as" having an impairment if he is subject to discrimination because of an actual or perceived impairment, regardless of whether the impairment actually limits or is perceived to limit a major life activity.
Should You File a Discrimination Claim?
Discrimination cases are usually very hard to win, even for experienced
attorneys, so they should not be undertaken haphazardly. Because stuttering is
such a complex and misunderstood disorder, stuttering discrimination cases must
be carefully planned and prepared in order to avoid potential disaster. Poorly
prepared cases may result in unfavorable judicial opinions, which may then be
followed by courts in other cases and seriously damage the rights of all persons
Discrimination claims based on "failure to hire" are particularly difficult to
prove. You will have to show not only that you were well-qualified for the job,
but also that the employer hired a fluent person who was demonstrably less
Discrimination Complaint Procedures
First step: File a complaint with the federal Equal Employment Opportunity Commission ("EEOC") or comparable state agency, usually within 180 days after the discriminatory act. (The period is 300 days if your state has its own anti-discrimination law.) Time limits vary under state statutes. (E.g., California's Fair Employment and Housing Act allows claims within one year.)
Burden of Proof
Discrimination is easy to allege, but often very difficult to prove.
disability discrimination cases under the ADA, the plaintiff must first
establish a prima facie case of discrimination. Plaintiff must show that:
burden then shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its employment action. McDonnell Douglas Corp. v. Green, 411 U. S.
792, at 802 (1973); Pugh v. Attica, 259 F. 3d 619, 626 (7th Cir. 2001) (applying
burden-shifting to an ADA claim). If the employer meets this burden, the
presumption of intentional discrimination disappears.
plaintiff can still prove discrimination by offering evidence that the
employer's explanation is a pretext. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U. S. 133, 143 (2000).
person who is successful in proving unlawful discrimination may be entitled to
certain remedies, depending on the particular statute involved.
Under the ADA, remedies may include:
(William Parry will be presenting a new workshop on "Overcoming Employment Discrimination" at the National Stuttering Association's annual conference in Cleveland, OH, on July 9, 2010.)
William D. Parry, Esquire,
office: 1608 Walnut Street, Suite 900, Philadelphia, PA 19103
Valsalva Control Stuttering Therapy is a new approach to improving fluency by controlling the physiological mechanism that may be causing stuttering blocks. For further information on Valsalva Control Therapy, visit Stuttering Therapy and Counseling at www.stutteringtherapist.com.
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Last updated: 1/11/2011