Washington Hearing Loss Lawyer & Attorney : John Waldo Law Firm : Hard of Hearing, Disability, Hearing Impairment : Seattle, Bainbridge, Washington, Pacific Northwest

Most of our blog posts have been about the Washington State Communication Access Project (Wash-CAP), and what we are doing to make Washington's public places more accessible to people with hearing loss.

While those efforts are the ones that show up in the news, we are also working to vindicate the legal rights of private individuals related to their hearing losses. Here is a sample of that work:

-- A union electrician needed sign-language interpreters to attend classes required for his continued certification, but the school -- a joint enterprise of contractors and the union -- took the position that the electrician needed to pay for the interpreters himself. We believe that under both Washington state law and federal law, that position is dead wrong, and after the school failed to respond to our letters, we filed suit. The result was an admission of error, an apology, and an amicable resolution of the matter for the future.

-- A woman's Cochlear Implant was failing, her doctor recommended implanting the other ear, but questions remain about whether Medicare will pay for a second implant. We helped find a medical facility that navigated through that maze, and performed the implant.

-- A social worker employed by the state was having difficulty keeping up with her workload, because the ambient noise in her office meant she had to look directly at her clients in order to speech read, and she couldn't do the computer entries at the same time. With our participation in the state's Reasonable Accommodation process, the worker now has a private and quiet office.

-- A health-care worker was forbidden to apply for a job she wanted because management believed her hearing loss would make it impossible for her to do the job. We filed suit on her behalf, and will argue that this kind of paternalism, however innocently intended, is wholly impermissible because if people are not given the chance to fail, they won't have the chance to succeed to their full potential.

-- A client in Texas lost her job as a financial controller when her company down-sized, and has been unable to find replacement work. She had a disability-insurance policy that would pay benefits if she had a disability, was unable to earn her pre-disability income and there was a substantial connection between the disability and the inability to earn. We worked with her on filing a claim for benefits. While we realize that this is a difficult economy, we think the extra handicap imposed by her hearing loss is the sort of connection that warrants an award of insurance benefits. We are cautiously optimistic as we await the decision.

If you have a question about your rights or the rights of a spouse or child with a hearing loss, please get in touch with us for a no-risk, no-obligation evaluation of your situation.  

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WHAT OUR STATE LAW PROVIDES

The Washington Law Against Discrimination (WLAD) provides considerably more protection for individuals with physical or sensory challenges than does federal law.

The gist of the WLAD is RCW 49.60.030, which states as follows:

 (1)  The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person is recognized and delcared to be a civil right. This right shall include, but not be limited to:

  (a) The right to obtain and hold employment without discrimination

  (b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement.

WHAT DOES THIS MEAN FOR PEOPLE WITH HEARING LOSS?

What the law tells us is that those of us who are Hard of Hearing (HOH) or totally deaf have the same right to get and hold a job, and the same right to enjoy public places as those folks with full hearing. Again, the law can't mandate medical miracles or force people to do what is technologically or economically impossible. But where providing us with sufficient help to function despite our hearing loss CAN be done, the law says that it MUST be done.

It is also important to note that being able to participate in the full spectrum of life is our civil right. When help is technically and economically possible, we should no more be satisfied going without than should people be told where they can and cannot sit on a bus due to their skin color.

HOW DO WE USE THE LAW TO OBTAIN OUR CIVIL RIGHTS/

What can we do if we are not given the help we need? Here is what the law says:

 (2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees.

HOW DOES OUR STATE LAW COMPARE TO THE FEDERAL DISABILITIES ACT?

State law does not define what exactly constitutes discrimination against the disabled. As an aid to applying the state law, Washington courts have looked to regulaltions implementing the federal Americans With Disabilities Act (ADA), and cases decided under ADA. So when the federal ADA says that it is discrimination not to provide auxiliary aids and services like assistive listening devices and open or closed captioning, those decisions would be incorporated into state law as well.

Unfortunately, the United States Supreme Court has construed the ADA in a way can severely limit its usefulness. In 2006, the Washington Supreme Court ruled that our state law should also incorporate those limitations. Our State Legislature disagreed, though, and passed a statute in 2007 essentially rejecting those narrow constructions, and stating specifically that the WLAD provides independent and broader protections than the ADA.

THE SPECIAL BENEFITS OF OUR STATE LAW.

The state WLAD has two other significant advantages for those who claim discrimination.

First, there is a directive in state law that it be "liberally construed." A directive to construe a statute liberally -- which directive does not exist in ADA -- means generally that if the case is one that could rationally be decided either way, the court should decide in favor of the claimant.

Second, the federal ADA states that in any lawsuit,  the prevailing party can recover attorneys' fees, meaning that anyone who brings a legal action is potentially at risk of paying the other side's lawyers. Under WLAD, though, the attorney-fee provision is a one-way street -- the claimant recovers fees in a successful action, ut is not at risk of paying fees should the action not succeed.

Because of the WLAD, Washington is a particularly promising place to pioneer removing those barriers encountered by the HOH community. When and if it becomes necessary to ask a court for help in establishing our rights, cases could be won in Washington that couldn't be won elsewhere under the ADA. Moreover, because of the one-way attorney-fee provision, there is far less risk involved in bringing cases where there is no clearly established precedent.

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