A deaf trucker had a CDL and a FMCSA exemption. EEOC says Werner should have hired him

  Image: Wikipedia

Image: Wikipedia

The suit filed by the U.S. Equal Employment Opportunity Commission against Werner Enterprises over the company's alleged failure to hire a deaf man as a driver because of his disability makes an interesting read, beyond the legal issues.

The suit, filed earlier this week against Werner in the U.S. District Court for Nebraska, is obviously one-sided; there is no Werner response as of yet. (Werner did not respond to FreightWaves’ request for comment). But it traces the path of Andrew Deuschle, the driver in question, who--according to the suit--does have a CDL, has worked as a driver at C.R. England, and possesses a disability exemption from the Federal Motor Carrier Administration.

Here's what the suit says about Deuschle and his interaction with Werner:

He received from FMCSA an exemption from the agency's hearing requirements in June 2014. He then enrolled in Amarillo Truck Driving Academy. While he was there, the school received a visit from Dale Hunt, a recruiter for Werner. At that visit, according to the suit, Hunt told Deuschle that Werner could not hire deaf persons. Later that year, Deuschle received his CDL. He also got a job as a driver for C.R. England, but also did apply to Werner, where he did not receive an offer.

The following year, Deuschle took another stab at Werner, and his deafness was not listed on the application. At that point, he had 4 1/2 "successful" months as a driver with C.R. England. A separate representative from Werner, Donny Gibbs, contacted Deuschle, told him his application had been pre-approved but that other information was necessary. At that point, Werner knew Deuschle was deaf, because as the suit points out, an interpreter was used in the communication between the two parties. Gibbs also asked Deuschle in a separate email whether he had at least 30 days experience as a driver--he did, with C.R. England--and whether he had graduated from CDL school, which he had.

SONAR_panelad.png

"Deuschle then asked Gibbs whether Hunt (the first Werner recruiter) had been correct when he said that Defendant cannot hire deaf persons for driving positions," the suit says. "Gibbs replied that ‘unfortunately, that is correct. That is a DOT regulation.’ On April 23, 2015, Deuschle emailed Gibbs again, explaining that he had a hearing exemption from FMCSA and asking whether he could work for Defendant."

Gibbs asked Deuschle to send his exemption and said Werner would review the application. A few days later, Deuschle asked Gibbs why he had not been hired--the lawsuit doesn't specify any sort of rejection letter or email having been received by Deuschle--which resulted in Gibbs directing Deuschle to a Werner review board, which then sent the issue back to Gibbs, the recruiter. Communication between the two sides stopped at that point.

The suit charges Werner with two key violations. The first is that they didn't hire Deuschle because of his disability. The second is that a question on the application regarding a job candidate's physical abilities violates the Americans with Disabilities Act’s limitations on asking a job candidate about any disabilities.

Outside of noting that the FMCSA waiver had been granted to Deuschle, the lawsuit doesn't bring it up again in making its broad charges of discrimination. There is no statement in the lawsuit by the EEOC that indicates the FMCSA exemption should have been seen by Werner as a ticket to a driving job that superseded their interpretation of the rules on hearing. (FMCSA summarizes the hearing rules here.)

An attorney for the EEOC in St. Louis, which filed the suit, declined to comment beyond what is in the legal document.

The EEOC and Werner have been in contact over this issue for at least a year. The suit says that on July 25, 2017, the EEOC sent a letter to Werner "finding reasonable cause to believe that (Werner) violate the ADA." The EEOC says it attempted to engage in "methods of conciliation" with Werner, but was unable to do so. In March of this year, EEOC issued a "Notice of Failure of Conciliation" to Werner.

The suit seeks several penalties to be levied against Werner, including back payments to Deuschle and taking steps to ensure that further discrimination does not occur. It does not ask that Werner hire Deuschle.