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Deaf job applicant may pursue disability discrimination claim against Cracker Barrel

By Ronald Miller, J.D.

Cracker Barrel may be correct that a mere delay in hiring or promotion is not an adverse employment action; however, a reasonable juror could conclude that the employer took him completely out of the running for a job.

A federal district court in Maryland denied Cracker Barrel’s motion for summary judgment against an EEOC suit brought on behalf of a deaf applicant who alleged that the restaurant chain refused to hire him as a dishwasher at one its restaurants because of his hearing impairment. Within two weeks of applying for the position, the applicant received an invitation to interview and was scheduled for an interview. However, after the employer learned that he was hearing impaired, its enthusiasm for his application disappeared. He was stonewalled by supervisors, his numerous follow-up phone calls went unanswered, and the interview never occurred. Thus, a reasonable juror could conclude that he was denied the position because he is hearing impaired (EEOC v. Cracker Barrel Old Country Store, Inc., January 16, 2020, Xinis, P.).

Job applicant. The applicant, who has years of experience in the restaurant industry, applied for an advertised dishwasher position at a Cracker Barrel store using the company’s online application system. On the same day, he received a confirmation of receipt of his application. Twelve days later, he was emailed an invitation for an interview.

Phone conversation. According to Cracker Barrel, the restaurant never heard back from him. For his part, the applicant asserted that on the day he received the interview offer, he traveled to a Workforce Technical Center to use its videophone services to schedule the interview. The videophone allowed the applicant to use sign language to communicate with an interpreter. The use of the videophone alerts the recipient that the caller is hearing impaired. During the call, the applicant communicated with the general manager. He was asked how he communicates with coworkers given his hearing impairment. The applicant assured the interviewer that communication has not presented a problem for him in prior jobs, since he communicates with either sign language, writing on paper, or spelling with his fingers.

Interview dodge. On the interview day, the applicant commuted 90 minutes to the restaurant and arrived before his appointment time. Upon his arrival, he wrote a note to the cashier that he was there for an interview. Later, the applicant was approached by an associate manager and told that the interviewer was not there. He sent a follow-up email to the interviewer about the experience.

The next day, a Friday, he went to the technical center and used the system to call Cracker Barrel. He called three separate times; in each instance, the interpreter was put on hold and then disconnected. On Monday, he called Cracker Barrel again, explained the situation, left his email address, and asked to leave a message for the interviewer. No one from Cracker Barrel ever contacted him. He was removed from consideration for the position one month later.

EEOC suit. The applicant filed a charge with the EEOC, which initiated a suit on his behalf contending that Cracker Barrel violated the ADA by refusing to consider him for employment based on his hearing impairment. The court found the applicant has a recognized disability under the ADA, and record evidence amply demonstrated that he was qualified for the dishwasher position. The dispute turned on whether he was subjected to an adverse employment action.

Merely a delay? Cracker Barrel contended that it did not refuse to hire the applicant, but merely “delayed” consideration of his application. Viewing the record evidence most favorably to the EEOC, the court determined that a reasonable juror could conclude Cracker Barrel did not simply “delay” hiring the applicant—it took him completely out of the running for employment.

Within two weeks of applying for the position, the applicant received an invitation to interview and scheduled an interview. The general manager learned that he was deaf because of his use of a videophone and an interpreter. Immediately thereafter, he was stonewalled: The interviewer did not keep their interview appointment and his numerous follow-up phone calls went unanswered. Then Cracker Barrel unilaterally took him out of consideration, noting plainly “do not hire.” Moreover, the employer only offered to interview the applicant after he filed his discrimination charge.

Disability may have been a factor. Cracker Barrel also argued there was no evidence his disability played a role in his non-selection. However, before the employer knew that the applicant was hearing impaired, it extended him a job interview, thus reflecting that it recognized his qualifications. But once the employer learned of his hearing impairment, its interest in his application waned. When he arrived for a pre-scheduled interview, he was turned away without explanation, and the interview was never rescheduled.

In the end, Cracker Barrel ended the job applicant’s employment prospects with a simple but telling electronic entry: “do not hire.” A reasonable juror could conclude that he was denied employment because he is hearing impaired. Therefore, the court denied Cracker Barrel’s motion for summary judgment.