Fighting Employment
Discrimination for People
Who Stutter
Under the Newly Amended
Americans with Disabilities Act
By William D. Parry, J.D., M.A., CF-SLP
Copyright © 2009 by William D. Parry
What This Workshop Is About
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The problem of employment discrimination against people
who stutter (PWS).
An introduction to the Americans with Disabilities Act of
1990 (ADA) and its applicability to PWS.
Roadblocks that were imposed by the Supreme Court
regarding meeting the definition of “disabled.”
How the new amendments to the ADA may improve
protections for PWS.
Dealing with discrimination in employment situations.
Deciding whether to file a discrimination complaint, and
the procedures involved.
Tips on handling job interviews for PWS.
Q and A.
First, My Story
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Moderate-to-severe stutterer since age 4, but could be
very fluent when acting.
Abandoned plans to become a psychiatrist after my
college Pre-Med Advisor ridiculed my stuttering, and I
switched to being an English Major.
Law degree from the U. of Pennsylvania Law School in
1966, where I was a member of Law Review.
Rejected by law firms because of my stuttering.
Briefly worked at a Phila. law firm before being laid off.
Legal editor for 5 years.
Worked for a trial lawyer in a dead-end job for 12 years.
Improved my speech thru self-help therapy in 1984.
My Story (cont’d)
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In 1985, founded Philadelphia Area Chapter of NSA, which
I led for 15 years.
In 1985, hired by law firm as trial lawyer handling
personal injury litigation.
Became partner in larger firm in 1989, before starting own
law practice in 1993.
Wrote Understanding & Controlling Stuttering.
Member of the NSA's Board of Directors and Chair of its
Advocacy Committee for 6 years.
M.A. in Speech, Language & Hearing Science from Temple
U. in 2009.
Now doing Clinical Fellowship as SLP, while still practicing
law.
Stuttering and Employment
Discrimination
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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 lessqualified 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.
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Hurst, M.I. & Cooper, E.B., Employer attitudes toward stuttering,
Journal of Fluency Disorders, 8, 1-12 (1983).
Stuttering and Employment
Discrimination (cont’d)
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Vocational rehabilitation counselors reported
that stuttering was vocationally handicapping.
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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.
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Opp, K.L., Hayden, P.A., & Cottrell, G.T., Stuttering and
employment: A survey report, Annual Convention of ASHA, Boston,
MA (1997).
Stuttering and Employment
Discrimination (cont’d)
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In another study:
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More than 70% of PWS agreed that stuttering
decreases one's chances of being hired or promoted.
More than 33% of PWS believed stuttering interferes
with their job performance.
20% had actually turned down a job or promotion
because of their stuttering.
Men and minorities were more likely to view stuttering
as handicapping than were women and Caucasians.
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Klein, J.F. & Hood, S.B., The impact of stuttering on
employment opportunities and job performance, J. Fluency
Disorders, 29, 255-273 (2004).
Stuttering and Employment
Discrimination (cont’d)
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Early in my legal career, I was openly rejected by law
firms because of my stuttering, despite my academic
qualifications.
During my years with the NSA, I have heard from
PWS who:
 Tried to hide their stuttering on the job for fear of
being fired.
 Suffered harassment or unfavorable evaluations by
intolerant supervisors.
 Were denied promotions to supervisory positions
or jobs that involved speaking or dealing with the
public.
Stuttering and Employment
Discrimination (cont’d)
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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.
Stuttering and Employment
Discrimination (cont’d)
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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.
The 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.
Stuttering Stereotypes
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PWS 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.
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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).
Stuttering Stereotypes
(cont’d)
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People often assume that PWS stutter for the same
reasons that cause occasional disfluency in non-stutterers
– e.g., nervousness, uncertainty, emotional distress, etc.
 Therefore, they assume that the PWS is experiencing
the same things, but to a greater degree.
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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).
One 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 leadership ability."
Stuttering and Employment
Discrimination (cont’d)
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The 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 – including jobs in business, law, medicine,
science, literature, entertainment, and even politics.
Nevertheless, for persons not so fortunate,
employment discrimination continues to be a problem
with serious consequences.
Combating Stuttering
Discrimination
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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:
 Rooting out our own negative stereotypes and feelings
of shame about stuttering;
 Presenting our stuttering in a positive, open, and
straightforward way, without trying to hide behind
annoying and self-defeating avoidance behaviors; and
 Educating employers and the public about the nature
of stuttering.
Organizations like the NSA and the Stuttering Foundation of
America have been active in educating the public.
Legal Protections for
Persons with Disabilities
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As 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:
 The Americans with Disabilities Act of 1990 ("ADA"), a
federal statute that applies to employers with 15 or more
employees.
 The Rehabilitation Act of 1973, which provides
protection for handicapped individuals employed by federal
agencies or employers receiving federal funds.
 State and local anti-discrimination laws, which may
apply to other employers.
Each statute has its own specific terms, applicability, and
procedures, which must be followed precisely.
Should We Call
Stuttering a “Disability”?
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Many PWS dislike being called "handicapped" or
"disabled."
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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.
To qualify for legal protection, we must therefore be
open and "up front" about our stuttering.
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The 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 (ADA)
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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
 job application procedures,
 hiring,
 firing,
 advancement,
 compensation,
 job training, and
 other terms, conditions, and privileges of employment.
Is Stuttering Covered
by the ADA?
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The 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."
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Congress did not want to limit the scope of the
Act.
How “Disability” Is
Defined in the ADA
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Whether an individual's condition is a
"disability" under the ADA depends on
whether it comes within any one of three
general categories:
 "(A) a physical or mental impairment that
substantially limits one or more of the
major life activities of such individual;
 "(B) a record of such an impairment; or
 "(C) being regarded as having such an
impairment." 42 U.S.C. sec. 12102(2).
Regulatory Definitions
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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:
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"physical or mental impairment" - among other things,
"Any physiological disorder" or "condition" affecting
"speech organs," or "any mental or psychological
disorder" such as "organic brain syndrome, emotional
or mental illness, and specific learning disabilities'' [29
C.F.R. sec. 1630.2(h)(1-2)].
"major life activities" – among other thing, "functions
such as . . . speaking" [29 C.F.R. sec. 1630.2(i)].
Is Stuttering Covered
as a “Disability”? (Cont’d)
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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
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The question of whether PWS are entitled to legal
protection has been argued in the courts.
A 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.
Stuttering in the
Federal Courts (cont’d)
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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.
A 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.
Stuttering in the
Federal Courts (cont’d)
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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.
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A 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.
"The case law cited by Fuddruckers wherein previous courts
have dealt with the issue of stuttering in the context of the
ADA does not persuade the Court that Andresen's stuttering
cannot, as a matter of law, constitute a disability. . . ."
Must Be “Qualified” for Job
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The 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”
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Therefore, when speaking is an essential job
requirement, persons who stutter may find
themselves in a "Catch 22" situation.
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If they prove they are "substantially impaired" in
speaking, they will not be "qualified" for the job.
On the other hand, if they prove that they are
"qualified" to hold a speaking job, they will not be
"substantially impaired,“ and therefore not
protected against discrimination.
The “Regarded As” Option
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For this reason, persons who stutter may have a
better chance under definition (C).
Although the person's stuttering might not in itself
"substantially limit" a major life activity under 42
U.S.C. sec. 12102(2)(A) of the ADA, that person
might still have a "disability" under sec. 12102(2)(C)
because he is "regarded as having such an
impairment."
In 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 stuttering.
Hostile Work Environment
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Courts have recognized the right to bring claims under the
ADA based on a “hostile work environment.”
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See, e.g., Fox v. General Motors Corp., 247 F.3d 169 (4th Cir.
2001).
An ADA plaintiff must prove the following to establish a
hostile work environment claim:
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He is a qualified individual with a disability;
He was subjected to unwelcome harassment;
The harassment was based on his disability;
The harassment was sufficiently severe or pervasive to alter
a term, condition, or privilege of employment; and
Some factual basis exists to impute liability for the
harassment to the employer (e.g., employer knew or should
have known and failed to take remedial action).
Judicial Road Blocks
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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.
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Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Toyota
Motor Mfg. v. Williams, 534 U.S. 184 (2002).
The Court ignored the EEOC’s broad definition of “disability,”
holding that the agency lacked authority to define the term.
As a result of these Supreme Court decisions, other
federal appellate courts further restricted coverage
under the ADA.
Judicial Road Blocks
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A 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.
Judicial Road Blocks (cont’d)
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In 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.
As 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.
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Orr 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 Cir.
2006).
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This interpretation could have disqualified PWS who use
medication, devices like SpeechEasy, or fluency-enhancing
techniques to reduce their stuttering.
Judicial Road Blocks (cont’d)
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Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).
Supreme Court held that “major life activity” and
“substantially limits” must be strictly interpreted.
 “Substantially limits” was interpreted to mean
“prevents or severely restricts.”
One Circuit Court held that a person who lost one
arm was not disabled because he was still able to use
his other arm.
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Carr v. Publix Super Markets, 170 Fed.Appx. 57 (11th Cir.
2006).
This interpretation could have excluded all but the
most severe stuttering from legal protection.
Judicial Road Blocks (cont’d)
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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.
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McClure v. General Motors Corp., 75 Fed.Appx. 983 (5th Cir.
2003).
This interpretation could have disqualified PWS who
have been successful in life despite their stuttering.
Judicial Road Blocks (cont’d)
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Intermittent limitations excluded.
 Some courts held that conditions that
cause intermittent seizures (such as
epilepsy) or sporadic limitations are not
“disabilities.”
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E.g., Corley v. Dept. of Veterans, 218 Fed.Appx. 727 (10th
Cir. 2007).
Since stuttering is often sporadic, this
interpretation could have excluded PWS who
are fluent some of the time.
Judicial Road Blocks (cont’d)
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In Sutton the Supreme Court also held:
 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.
This interpretation would have made it practically
impossible for PWS to establish a claim even under
the “regarded as” definition.
ADA Amendments
Act of 2008
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ADA Amendments Act of 2008 (ADAAA) –
 Effective January 1, 2009.
 Was passed by Congress to reverse many of the
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limitations imposed by the Supreme Court and
other courts.
Re-established a broader definition of “disability.”
Also amends the Rehabilitation Act of 1973.
Contains provisions that may strengthen
protections for PWS.
Broadened Definition of
“Disability” under ADAAA
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The ADAAA specifically repudiates the
Supreme Court decisions in Sutton and
Toyota that had narrowed the definition of
“disability.”
The ADAAA states that: “The definition of
disability . . . shall be construed in favor of
broad coverage of individuals under this Act,
to the maximum extent permitted by this
Act.”
Speaking as a
Major Life Activity
 The ADAAA specifically defines “major
life activity” as including “speaking.”
 An impairment need only substantially
limit a single major life activity to be
considered a disability.
 Under ADAAA guidelines, “substantially
limits” may include restrictions that are
less than “significant” or “severe.”
Mitigating Measures
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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.
Specific mitigating measures not to be considered include:
 Medication, prosthetic devices, reasonable accommodations,
and learned behavioral or adaptive neurological
modifications.
Therefore, a PWS would not be disqualified simply
because his stuttering is mitigated by means of
medication, DAF/FAF devices, or fluency-enhancing
strategies, etc.
Intermittent Limitations
 Under 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.
“Regarded As” Clarified
 Under the ADAAA, a person who asserts a
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“regarded as” claim is not required to show that
the impairment is perceived to substantially limit
a major life activity.
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.
Persons who only come under the “regarded as”
definition are not entitled to “reasonable
accommodation.”
Should You File a
Discrimination Claim?
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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 who stutter.
Discrimination Complaint
Procedures
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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.
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300 days if the state has its own anti-discrimination law.
Time limits vary under state statutes. (E.g., California’s Fair
Employment & Housing Act allows claims within one year.)
EEOC or state agency then investigates complaint and
decides whether or not to take action.
Complainant can request a "right to sue" letter from the
EEOC 180 days after the charge was filed.
After the letter is issued, the complainant then has 90
days in which to file a lawsuit against the employer in a
U.S. District Court.
Burden of Proof
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Discrimination is easy to allege, but often very
difficult to prove.
In disability discrimination cases under the ADA, the
plaintiff must first establish a prima facie case of
discrimination. Plaintiff must show that:
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Plaintiff has a disability, as defined by the ADA;
Plaintiff is a qualified individual; and
Plaintiff was subjected to unlawful discrimination
because of the disability.

See, e.g., Davis v. Florida Power & Light Co., 205 F.3d
1301, 1305 (11th Cir. 2000).
Burden of Proof (cont’d)

The 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).

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If the employer meets this burden, the presumption
of intentional discrimination disappears.
The 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).
Discrimination Remedies
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A 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:
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hiring, reinstatement, or promotion,
back pay and/or front pay,
reasonable accommodation,
other actions that will put the individual in the same
condition he or she would have been in but for the
discrimination,
attorney's fees, expert witness fees, and court costs,
other compensatory damages or punitive damages, if the
discrimination is found to be intentional or malicious.
Contact Information
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William D. Parry, Esquire, J.D., M.A., CF-SLP
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Law office: 1608 Walnut Street, Suite 900, Philadelphia, PA
19103
Office phone: 215-735-3500
E-mail: wdparry@aol.com
Websites:
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The Valsalva-Stuttering Network: www.valsalva.org
 E-mail: valsalvastutter@aol.com
Beating Stuttering Blocks: www.stutterblock.com
Stuttering and the Law: www.stutterlaw.com