We have all heard the statement that "life is not fair," and most of us who stutter do not need to be reminded of its truth. In competing for employment or advancement, people who stutter often find themselves at a distinct disadvantage. Many of us have languished for years in undesirable, low-level, or marginal jobs, while watching less-qualified fluent individuals move ahead in their careers.

Studies have shown that 85 percent of employers agreed that stuttering decreases a person's employability and opportunities for promotion. Hurst, M.I. & Cooper, E.B., Employer attitudes toward stuttering, Journal of Fluency Disorders, 8, 1-12 (1983). Vocational rehabilitation counselors who were surveyed reported that stuttering was indeed vocationally handicapping. Hurst, M.I. & Cooper, E.B., Vocational rehabilitation counselors' attitudes toward stuttering, Journal of Fluency Disorders, 8, 13-27 (1983). Surveys of people who stutter have reported high rates of unemployment, discrimination in attaining employment, and denial of promotions because of stuttering. Opp, K.L., Hayden, P.A., & Cottrell, G.T., Stuttering and employment: A survey report, Annual Convention of the American Speech, Language, and Hearing Association, Boston, MA (1997).

During my 14 years as an National Stuttering Project chapter leader and as current chair of the National Stuttering Association's Advocacy Committee, I have heard from stutterers who try to hide their stuttering on the job for fear of being fired, who suffer harassment or unfavorable evaluations by intolerant supervisors, and who have been denied promotions to supervisory positions or jobs that involve speaking or dealing with the public. I personally felt the sting of employment discrimination early in my legal career, when I was openly rejected by firms because of my stuttering, despite my academic qualifications.

The Advocacy Committee has been contacted by stutterers who have been denied jobs (or even job interviews), on the grounds that the job required "excellent oral communications skills." Often this was simply because the job occasionally involved answering the telephone or speaking to people. One woman was even denied a job as a typist in a typing pool - on the grounds that employees were expected to take turns answering the telephone when the receptionist was on her lunch break.

Most persons who stutter are capable of adequate - and often very effective - oral communication, regardless of their disfluency. However, if stuttering disqualifies them from every job that involves some speaking or use of the telephone, they will be excluded from vast areas of the job market - and particularly from the most desirable jobs. The greatest obstacle to communication comes when we feel compelled to hide our stuttering out of fear of reprisal. For employers to demand fluency as the price of one's job only creates a vicious spiral of stress and anxiety that makes stuttering worse.

Further dampening stutterers' job prospects are popular misconceptions about the nature of stuttering. Research has confirmed that persons who stutter are subject to negative stereotypes that have significantly harmed their employment and promotion opportunities. These stereotypes include the widely accepted impression that stutterers are nervous, shy, quiet, self-conscious, withdrawn, tense, anxious, fearful, reticent, and guarded. See, e.g., Hurst, M. I., & Cooper, E. B., Employer attitudes toward stuttering, Journal of Fluency Disorders, 8, 1-12 (1983); White, P. A., & Collins, S. R. C., Stereotype by inference: A possible explanation for the "stutterer" stereotype, Journal of Speech and Hearing Research, 27, 567-570 (1984); Woods, C. L., & Williams, D. E., Speech clinicians' conception of boys and men who stutter, Journal of Speech and Hearing Disorders, 36, 225-234 (1971); Woods, C. L., & Williams, D. E., Traits attributed to stuttering and normally fluent males, Journal of Speech and Hearing Research, 19, 267-278 (1976).

For example, one member of the Advocacy Committee was denied a promotion by the U.S. Weather Service because his supervisor incorrectly assumed, on the basis of his stuttering, that he lacked the ability "to make rapid fire judgments, think quickly and demonstrate leadership ability."

The occurrence and impact of discrimination may vary from person to person depending on a variety of factors - such as the severity of stuttering, the kind of work, and the marketability of the individual's other skills. Some stutterers say that they have never encountered employment discrimination. Many people have achieved success despite their stuttering. Given a chance, people who stutter have distinguished themselves in all walks of life - including business, law, medicine, science, literature, entertainment, and even politics. Nevertheless, for persons not so fortunate, employment discrimination continues to be a problem with serious consequences.

What can be done to combat stuttering discrimination? In my article, Being Your Own Best Advocate (http://www.nsastutter.org/letgo/parry98a.html), I suggested ways in which each person who stutters can be his or her own advocate in the battle against discrimination. These suggestions included: (1) rooting out our own negative stereotypes and feelings of shame about stuttering; (2) presenting our stuttering in a positive, open, and straightforward way, without trying to hide behind annoying and self-defeating avoidance behaviors; and (3) educating employers and the public about the nature of stuttering. The NSA's Advocacy Committee has also written letters in support of NSA members in certain instances.

As a last resort, persons who stutter may pursue legal remedies to challenge acts of discrimination. In the United States, a number of state and federal statutes now purport to outlaw discrimination against persons with handicaps or disabilities. The Americans with Disabilities Act of 1990 ("ADA") is a federal statute that bans discrimination "against qualified individuals because of a disability, in regard to job application procedures, hiring, advancement, discharge, compensation, job training, and other terms, conditions, and privileges of employment." It currently applies to employers with 15 or more employees. The Rehabilitation Act of 1973 provides protection for handicapped individuals employed by federal agencies or employers receiving federal funds. Other employers may be covered by various state laws.

Each statute has its own specific terms, applicability, and procedures, which must be followed precisely. Generally, the first step is to file a complaint with the federal Equal Employment Opportunity Commission ("EEOC") or comparable state agency, usually within 180 days after the discriminatory act. The EEOC or state agency then has an opportunity to investigate the complaint and decide whether or not to take action. The complainant can request a "right to sue" letter from the EEOC 180 days after the charge was filed. After the letter is issued, the complainant then has 90 days in which to file a lawsuit against the employer in a U.S. District Court.

A person who is successful in proving unlawful discrimination may be entitled to certain remedies, depending on the particular statute involved. Under the ADA, remedies may include hiring, reinstatement, promotion, back pay, front pay, reasonable accommodation, or other actions that will put the individual in the same condition he or she would have been in but for the discrimination. Remedies may also include payment of attorney's fees, expert witness fees, and court costs. If the discrimination is found to be intentional or malicious, other compensatory damages or punitive damages may also be awarded.

When first enacted, the ADA looked like a potentially powerful weapon against handicap discrimination. Unfortunately, the Act has been interpreted very narrowly by the courts, severely reducing its effectiveness. A study by the American Bar Association revealed that plaintiffs prevailed in less than 10 per cent of the cases brought under the ADA. Most cases were thrown out of court even before trial, usually on the grounds that the plaintiff did not meet the statutory definition of an "individual with a disability," and consequently was not covered by the Act.

Therefore, the first question that must be addressed in a stuttering discrimination case is whether or not the individual plaintiff's stuttering qualifies as a "disability" under the ADA. In my article, Stuttering as a Disability under the Americans with Disabilities Act (http://members.aol.com/wdparry/ada.htm), I have discussed the probable applicability to stuttering of the ADA and the EEOC regulations thereunder. Thus far, there are no cases that have definitively decided the issue.

Although a number of stuttering discrimination cases have been successfully settled before trial, these are not legal precedent because they did not result in published judicial opinions. The only decision involving stuttering and the ADA, Detko v. Blimpies Restaurant, 924 F.Supp. 555 (S.D.N.Y. 1996), did not resolve the issue. In that case, a U.S. District Court dismissed plaintiff's complaint because he simply alleged that he "stutters," without pleading additional facts to show that his stuttering came under one of the statutory definitions of "disability" set forth in the ADA.

It should be understood that the ADA does not list specific conditions by name as "disabilities." Congress purposely avoided doing this so as not to limit the scope of the Act. Instead, the question of whether an individual's condition is a "disability" under the ADA depends on whether it comes within any one of three general categories. The Act defines "disability," with respect to an individual, as:

"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

"(B) a record of such an impairment; or

"(C) being regarded as having such an impairment." 42 U.S.C. sec. 12102(2).

The federal regulations promulgated by the EEOC under the ADA define "physical or mental impairment" to include, among other things, "Any physiological disorder" or "condition" affecting "speech organs" (29 C.F.R. sec. 1630.2(h) (1)), or "any mental or psychological disorder" such as "organic brain syndrome, emotional or mental illness, and specific learning disabilities'' (29 C.F.R. sec. 1630.2(h)(2)).

The regulations' definition of "major life activities" includes, inter alia, "functions such as . . . speaking . . . and working" [29 C.F.R. sec. 1630.2(i)].

Stuttering clearly fulfills the definition of a "physiological disorder" or "condition" that affects the "speech organs" and that limits an individual's ability to participate in the "major life activity" of "speaking" and, in some cases, "working". However, in order to come under definition (A), the individual must prove that his stuttering must be a "substantial" impairment. This crucial determination would have to be decided on a case-by-case basis. While severe stuttering might be considered a substantial impairment, mild stuttering probably would not.

At the same time, the stutterer must also prove that he is "qualified" to perform the "essential functions of the employment position that such individual holds or desires" with or without reasonable accommodation. The ADA states that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." ADA, section 12111(8).

Therefore, when speaking is an essential job requirement, stutterers will find themselves in a "Catch 22" situation. If they prove they are "substantially impaired" in speaking, they will not be "qualified" for the job. On the other hand, if they prove that they are "qualified" to hold a speaking job, they will not be "substantially impaired."

For this reason, persons who stutter may have a better chance under definition (C). Although the person's stuttering might not in itself "substantially limit" a major life activity under 42 U.S.C. sec. 12102(2)(A) of the ADA, that person might still have a "disability" under sec. 12102(2)(C) because he is "regarded as having such an impairment." In other words, a stutterer could argue that his stuttering does not prevent him from performing the essential speaking requirements of the job, but that the employer rejected him because of myths, fears, and stereotypes associated with stuttering.

Even when the stutterer can prove that he is covered by the ADA, the battle is far from over, because the employer then has an opportunity to establish various defenses, including nondiscriminatory reasons for the stutterer's rejection. The stutterer would then have to counter these defenses by showing that the purported reasons were merely pretexts.

Because stuttering is such a complex and misunderstood disorder, stuttering discriminations cases must be carefully planned and prepared in order to avoid potential disaster. Our greatest fear is that poorly prepared cases will result in unfavorable judicial opinions, which will then be followed by courts in other cases and seriously damage the rights of all persons who stutter. It would be a tragedy if we allowed the popular prejudices and misconceptions about stuttering to become enshrined as judicial precedent, leaving millions of persons who stutter without legal protection.