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Ruling upheld in case of discrimination against deaf job applicant


NEW ORLEANS—An appellate court has upheld a jury verdict against a temporary staffing agency in a disability case brought by the Equal Employment Opportunity Commission, in which the temp agency allegedly refused to consider a deaf job applicant for a position.

According to the April 26 ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Equal Employment Opportunity Commission vs. Service Temps Inc., doing business as Smith Personnel Solutions, in June 2006, Jacquelyn Moncada, who is deaf from birth, applied for a job as a stock clerk to package cosmetics for a client of the Cleburne, Texas-based temp agency. She arranged for a sign language interpreter to meet her at the job site to translate as she applied for the position, according to the ruling.

Carl Ray, a Smith Personnel account manager, “told her she could not apply for the position because she is deaf, that the warehouse environment would be too dangerous for her,” according to the ruling.

Ms. Moncada filed a charge with the Equal Employment Opportunity Commission in July 2006. After conciliation efforts failed, the issue eventually went to a jury trial.

After a three-day trial in September 2010, the jury found Smith had violated the Americans with Disabilities Act and awarded Ms. Moncada $14,400 in back pay, $20,000 in compensatory damages for emotional pain and suffering, and $150,000 in punitive damages.

As a result of a subsequent motion, the punitive damages award was reduced to $68,800, but the court granted the EEOC injunctive relief, which required Smith to refrain from discriminating against disabled employees, among other provisions.


The temp agency appealed the trial court's decision based on several issues, including its imposition of injunctive relief, but was denied in a unanimous three-judge ruling of the appellate court.

Smith “maintains that it should not have borne the burden of showing, essentially, that it would not violate the ADA in the future,” said the appellate court ruling.

“In any event, Smith's argument only raises the question whether the district court was required to provide injunctive relief, not whether it had the discretion to do so, which it unquestionably did.”

Commenting on the ruling, plaintiffs attorney Paul W. Mollica, of counsel to law firm Outten & Golden L.L.P. in Chicago, who was not involved in the case, said the ruling is significant in part because EEOC hiring cases “tend to be scarce, so this is a very useful one.”

It is also significant because of the appellate’ court’s ruling on the injunctive relief issue, he said.

“The employer had the obligation to present not only a preponderance of evidence, but clear and convincing evidence” it would not to return to the same practice. It “failed to meet that burden at trial.”

The judge held the injunction was mandatory, and the appellate court upheld that ruling, Mr. Mollica said. There is a “very strong presumption in favor of injunctive relief” in discrimination cases, Mr. Mollica said.

A spokesman for the temp agency could not immediately be reached for comment.

In 2010, the 9th U.S. Circuit Court of Appeals in San Francisco held that a United Parcel Service of America Inc. unit may have unlawfully discriminated against a deaf worker by failing to provide American Sign Language interpreters at all meetings.

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