Slurred speech condition may require accommodation

An Executive Secretary for Neiman Marcus received excellent appraisals for eight years. Then she began having trouble speaking, which manifested itself as slurred speech. She was diagnosed with dysarthria or slurred speech, but no underlying medical condition was ever found.

The company asked her to undergo speech therapy, which she did, but her condition did not improve. She then underwent testing and evaluation at Arizona State University. Although her speech was slurred, the evaluator indicated that "she demonstrated sufficient loudness during testing procedures . . . [and] receptive and expressive language skills, voice quality, and fluency were judged to be within normal limits."

The manager began documenting complaints from people both in and outside the store who had commented about her speech. While some of the individuals described her as sounding drunk or as if she were taking drugs, none ever complained that she failed to provide all the requested information.

After three months of this informal approach, management put her on a 90 day probationary warning, during which time she must improve her speech or be terminated. At this point she began asking for accommodations. She suggested that some of the outside calls could be rerouted to another secretary, but management refused to consider this option. She asked about the possibility of applying for another position in the store that did not require significant verbal communication. Neiman Marcus refused to transfer her on the ground that there were no job openings available in the entire company that would be suitable.

The secretary then sued under the ADA, taking the position that her speech, as it was, was adequate for the job she held. Because there was disagreement over whether her speech met a reasonable standard, the Court allowed the case to go to trial.

Note: The lower court never reached the question of whether the secretary was a qualified individual with a disability, therefore, the Court of Appeals was unable to address this question. We believe a court would find that she was NOT disabled, since her condition had no underlying medical cause. However, she might still fall under protection of the ADA as someone perceived as being disabled. This case probably will show up again in the Court of Appeals after the trial court rules on this issue.

COOPER v. NEIMAN MARCUS GROUP,
___F3d___, 97 CDOS 7315 (9th Cir., September 11, 1997)

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