Employment — The ADA and People with Hearing Loss

Circa 2006

Beth is a business professional who last year experienced significant hearing loss from an injury. After a period of recovery, she is ready to reenter the job market and has decided to look for a sales position. What protections does federal law provide her against discrimination based on her disability?

The employment provisions of the Americans with Disabilities Act (ADA), a federal law that prohibits discrimination against individuals with disabilities, apply to employers with 15 or more employees. The law is enforced by the U.S. Equal Employment Opportunity Commission (EEOC). Additional protections are available under Section 501 of the Rehabilitation Act—a law applying to jobs with the federal government, also enforced by the EEOC—and under many state laws.

Hearing loss affects about 28 million Americans, 15 million of whom are full- or part-time workers. Because hearing loss is more prevalent as people age, and Americans are increasingly choosing to remain in the workforce longer, the number of workers who are deaf or hard of hearing is projected to grow.

The EEOC emphasizes that people who are deaf or hard of hearing can perform successfully on the job and should not be denied opportunities because of stereotypical assumptions about hearing loss. Employers often assume incorrectly that workers with hearing loss will cause safety hazards, increase employment costs or have difficulty communicating in fast-paced environments. In reality, people who are deaf or hard of hearing can be effective and safe employees.

To answer common questions about accommodating with people with hearing loss in the workplace, the EEOC provides the following guidelines.

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WHEN IS HEARING LOSS CONSIDERED A DISABILITY UNDER THE ADA?

Hearing loss is a disability under the ADA if any of the following conditions are met: 1) it substantially limits a major life activity (for example, ability to understand spoken communication or hear traffic, sirens, warning alerts, etc.); 2) it has substantially limited a major life activity in the past; or 3) an employer regards or treats the individual as if the hearing loss is substantially limiting.

WHAT CAN AN EMPLOYER ASK BEFORE MAKING AN OFFER OF EMPLOYMENT?

An employer may not ask questions about an applicant’s medical condition or require the applicant to take a medical examination before it makes a job offer. However, an employer may ask all applicants generally whether they will need a reasonable accommodation (e.g., a sign language interpreter, additional test-taking time) to complete the application process.

DOES AN APPLICANT OR EMPLOYEE HAVE TO DISCLOSE HEARING LOSS?

The ADA does not require applicants or employees to disclose hearing loss to employers. Verbal or written disclosure is necessary in order to request reasonable accommodations, but it can be made at any time (before or after the hiring process). An employer may not refuse to consider a request for an accommodation because it believes the request should have been made earlier; however, it is a good idea for an individual with a hearing disability to request any needed accommodations before performance problems occur.

Additionally, an employer may ask about a medical condition or require a medical examination if it has a reasonable belief, based on objective evidence, that an employee’s medical condition is the cause of performance problems or may pose a direct threat to the employee or others. For example, if an employee makes an unusually large number of errors in the customer transactions she records when talking on the phone, her employer could lawfully ask if she has difficulty hearing customers and, if so, whether she needs an accommodation. (A possible accommodation would be a captioned telephone that would allow her to communicate verbally while receiving an almost real-time text relay of the conversation.)

On the other hand, if an employee’s performance problems are unlikely to be related to hearing loss (e.g., repeated tardiness or poor writing skills), the employer may not ask questions about hearing, but instead should handle the situation in accordance with its general policies for poor performance.

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CAN AN EMPLOYER RESCIND A JOB OFFER IF IT FEARS HEARING LOSS WILL AFFECT JOB PERFORMANCE?

The first step is for the employer to express its concerns to the hiree and ask the hiree how he or she would perform the essential functions of the position, with or without a reasonable accommodation. The employer may withdraw a job offer made to an individual with a disability only if it can demonstrate that the hiree is unable to perform the fundamental job duties or would pose a direct threat on the job site (i.e., a significant risk of harm to self or others that cannot be reduced through reasonable accommodations). Any potential harm must be substantial and likely to occur.

WHAT MEDICAL INFORMATION CAN AN EMPLOYER REQUEST FOR A REASONABLE ACCOMMODATION?

In considering accommodation requests, employers may ask for reasonable documentation showing that the condition is a disability and that accommodation is needed, but they are not entitled to full medical records. An employer may not ask for information about conditions unrelated to the one for which the accommodation is requested or require more information than is necessary to determine whether an accommodation is needed.

WHAT ARE THE CONFIDENTIALITY RULES ONCE HEARING LOSS HAS BEEN DISCLOSED?

Under the ADA, an employer must keep confidential any medical information an applicant or employee discloses. The information must be kept in files separate from general personnel files and must be treated as a confidential medical record. Importantly, telling coworkers that an employee is receiving a reasonable accommodation amounts to a disclosure of confidential medical information; as such, an employer should answer co-workers’ questions with a simple explanation that it cannot discuss the situation of any employee with co-workers. An applicant’s or employee’s medical information may be disclosed only 1) to supervisors if necessary to provide reasonable accommodations or explain an employee’s work restrictions; 2) to first aid or safety personnel if a condition might require emergency treatment or an employee might require assistance in an emergency; 3) to government officials investigating compliance with the ADA or similar state and local laws; 4) as needed for workers’ compensation purposes (for example, to process a claim); and 5) for certain insurance purposes.

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WHAT TYPES OF ACCOMMODATIONS ARE COMMON FOR PEOPLE WITH HEARING LOSS?

Frequent accommodations include 1) a sign language interpreter (particularly for meetings where moment-tomoment interaction is needed); 2) a TTY, text telephone, voice carry-over telephone or captioned telephone; 3) appropriate emergency notification systems (e.g., strobe lighting on fire alarms or vibrating pagers); 4) written memos and notes (especially for brief, simple or routine communications); 5) work area adjustments (e.g., a desk away from a noisy area, adequate lighting for lip-reading); 6) assistive computer software (e.g., net meetings, voice recognition software); 7) assistive listening devices (ALDs); 8) augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice; 9) communication access real-time translation (CART), which translates voice into text at real-time speeds; 10) closed captioning for videos 11) time off in the form of accrued paid leave (or unpaid leave if paid leave has been exhausted) for disability-related tasks (e.g., training a new hearing dog); 12) alteration of non-essential job functions; and 13) reassignment to a vacant position, if requested by the employee and more appropriate for the his or her disability.

Note that contracting with another entity to provide a service or conduct an event does not relieve an employer of the responsibility to provide a necessary accommodation for that service or event.

DOES AN EMPLOYER HAVE TO PROVIDE THE REASONABLE ACCOMMODATION THAT AN INDIVIDUAL WITH HEARING LOSS WANTS?

No. The accommodation must be effective to remove the workplace barrier, providing the individual who is deaf or hard of hearing an equal employment opportunity to participate in the application process, attain the same level of performance as co-workers in the same position, and enjoy the benefits and privileges of employment available to all employees. Where two or more suggested accommodations are effective, primary consideration should be given to the individual’s preference, but the employer may choose the easier or less expensive one to provide.

An employer is not required to provide accommodations that would result in an undue hardship (i.e., extreme difficulty or expense), but in these cases the employer should consider whether some or all of the accommodation’s cost can be offset. For example, state vocational rehabilitation agencies or disability organizations may be able to provide accommodations at little or no cost to the employer. Federal and state tax credits and deductions may also help offset the cost of accommodations. Even if a particular accommodation would result in undue hardship, an employer should not assume that no accommodation is available, as a different accommodation might be possible without undue hardship.

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ARE THERE ACTIONS AN EMPLOYER IS NOT REQUIRED TO TAKE AS REASONABLE ACCOMMODATIONS?

Yes. An employer does not have to remove an essential job function, lower production standards or excuse violations of conduct rules that are job-related and consistent with business necessity, even where an employee claims that the disability caused the misconduct. Additionally, employers are not required to provide employees with personal use items, such as hearing aids or similar devices that are needed both on and off the job.

CAN AN EMPLOYER REQUIRE AN EMPLOYEE TO USE A HEARING AID OR OTHER DEVICE?

No. The ADA does not allow employers to require an assistive hearing device, nor may an employer deny an individual with a hearing disability a reasonable accommodation because the employer believes that the individual has failed to take some measure that would improve his or her hearing.

WHAT CAN PEOPLE DO IF THEIR RIGHTS HAVE BEEN VIOLATED?

Applicants or employees within the private sector or state/local government can file a charge of discrimination with a local EEOC office, by mail or in person, within 180 days from the date of the alleged violation (extended to 300 days if a state or local anti-discrimination law also covers the charge). Applicants or employees making a claim against a federal agency must file a complaint with that agency by contacting an EEO Counselor at the agency within 45 days of the alleged discriminatory action.

For information and case examples regarding the ADA and hearing loss or EEOC claims, visit

www.eeoc.gov/facts/deafness.html

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