Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act

Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act

The U.S. Equal Employment Opportunity Commission

INTRODUCTION

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees and state and local government employers of the same size. Section 501 of the Rehabilitation Act provides the same protections for federal employees and applicants for federal employment. Most states also have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and provide protections in addition to those available under the ADA.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. This document is part of a question-and-answer series addressing particular disabilities in the workplace. It explains how the ADA might apply to job applicants and employees with hearing impairments, including:

when a hearing impairment is a disability under the ADA;
when an employer may ask an applicant or employee about a hearing impairment;
how employers can ensure the confidentiality of applicants’ and employees’ medical information;
what types of reasonable accommodations an individual with a hearing disability may need;
to what extent an employer must provide a reasonable accommodation to an individual with a hearing disability;
how an employer should handle safety concerns and harassment issues; and,
how an individual with a hearing impairment can file a claim against an employer under the ADA or the Rehabilitation Act.

GENERAL INFORMATION ABOUT HEARING IMPAIRMENTS

Between 2000 and 2004, estimates of the number of people in the United States with a self-described “hearing difficulty” ranged from 28.6 million ¹ to 31.5 million.² The number of individuals with hearing difficulty is expected to rise rapidly by the year 2010 when the baby-boomer generation reaches age 65. As compared to other age groups, the percentage of individuals with hearing difficulty is greatest among those individuals age 65 and above.³ A “hearing difficulty” can refer to the effects of many different hearing impairments of varying degrees.

The Centers for Disease Control and Prevention (CDC) refer to hearing impairments as conditions that affect the frequency and/or intensity of one’s hearing.⁴Although the term “deaf” is often mistakenly used to refer to all individuals with hearing difficulties, it actually describes a more limited group. According to the CDC, “deaf” individuals do not hear well enough to rely on their hearing to process speech and language. Individuals with mild to moderate hearing impairments may be “hard of hearing,” but are not “deaf.” These individuals differ from deaf individuals in that they use their hearing to assist in communication with others. ⁵ As discussed below, people who are deaf and those who are hard of hearing can be individuals with disabilities within the meaning of the ADA.

A hearing impairment can be caused by many physical conditions (e.g., childhood illnesses, pregnancy-related illnesses, injury, heredity, age, excessive or prolonged exposure to noise), and result in varying degrees of hearing loss.⁶ Generally, hearing impairments are categorized as mild, moderate, severe, or profound.⁷ An individual with a moderate hearing impairment may be able to hear sound, but have difficulty distinguishing specific speech patterns in a conversation. Individuals with a profound hearing impairment may not be able to hear sounds at all. Hearing impairments that occur in both ears are described as “bilateral,” and those that occur in one ear are referred to as “unilateral.”⁸

The many different circumstances under which individuals develop hearing impairments can affect the way they experience sound, communicate with others, and view their hearing impairment.⁹ For example, some individuals who develop hearing losses later in life find it difficult both to adjust to a world with limited sound, and to adopt new behaviors that compensate for their hearing loss. As a result, they may not use American Sign Language (ASL) or other communication methods at all, or as proficiently as individuals who experienced hearing loss at birth or at a very young age.

Individuals with hearing impairments can perform successfully on the job and should not be denied opportunities because of stereotypical assumptions about hearing loss. Some employers assume incorrectly that workers with hearing impairments will cause safety hazards, increase employment costs, or have difficulty communicating in fast-paced environments. In reality, with or without reasonable accommodation, individuals with hearing impairments can be effective and safe workers. (For information on Reasonable Accommodation, see Questions 9 – 15, below.)

1. When is a hearing impairment a disability under the ADA?
A hearing impairment is a disability under the ADA if: (1) it substantially limits a major life activity; (2) it substantially limited a major life activity in the past; or (3) the employer regarded (or treated) the individual as if his or her hearing impairment was substantially limiting.
The determination of whether a hearing impairment is substantially limiting must be made on an individualized, case-by-case basis.

Example 1: A job applicant has a bilateral, moderate hearing impairment that affects the transmission of lower frequencies of sound to her brain. As a result, she has difficulty hearing in conversations because vowel sounds tend to occur at lower frequencies that she cannot distinguish. She often must ask others to speak slower or louder, or to repeat statements she did not initially hear or understand. This applicant is substantially limited in hearing.

If an individual uses mitigating measures, such as hearing aids, cochlear implants, or other devices that actually improve hearing, these measures must be considered in determining whether the individual has a disability under the ADA. Even someone who uses a mitigating measure may have a disability if the measure does not correct the condition completely and substantial limitations remain, or if the mitigating measure itself imposes substantial limitations.

Example 2: An individual with a hearing impairment uses a hearing aid to amplify sounds. With the hearing aid, he can detect sounds such as traffic, sirens, and loud conversations at a very low level. For this reason, he must be in close proximity to the origin of sound in order to hear in a meaningful way. This individual is substantially limited in hearing even with the mitigating measure (i.e., the hearing aid).

Measures that merely compensate for the fact that someone has a substantially limiting hearing loss but that do not actually improve hearing, such as sign language interpreters or lip-reading, are not mitigating measures. Furthermore, if an individual does not use mitigating measures, then the hearing impairment must be considered as it exists, without speculation about how a mitigating measure might lessen the hearing loss.

Even if an individual’s hearing impairment does not currently substantially limit a major life activity, the condition may still be a disability if it was substantially limiting in the past.

Example 3: Malcolm is a floor manager with a clothing manufacturer. He applies for a promotion to assistant factory manager. In his application package, Malcolm chooses to inform the promotion committee that five years ago his hearing was permanently impaired in a workplace accident. Following the accident, Malcolm could barely hear and distinguish between floor-level conversations, public announcements, and warning alerts from moving machinery. Malcolm primarily communicated through writing and limited lip reading. Two years ago, Malcolm began using hearing aids in both ears. The hearing aids amplify sounds and help Malcolm to distinguish among them. As a result, Malcolm can now hear conversations sufficiently well to respond verbally. Malcolm’s ability to hear was substantially limited prior to acquiring his hearing aids. Therefore, Malcolm is an individual with a disability under the ADA because he has a “record of” a substantially limiting impairment.

Finally, an individual’s hearing impairment may be a disability when it does not significantly restrict major life activities, but the employer treats the individual as if it does.

Example 4: An individual who uses a hearing aid to correct a mild hearing impairment in one ear applies for a position as a security guard at a state courthouse. The employer refuses to hire the applicant, pursuant to a policy of disqualifying anyone who uses a hearing aid from working as a court security guard. The employer believes that this applicant and anyone who wears a hearing aid will be unable to locate the source of sounds that may indicate the presence of a threat or hear someone who calls for assistance in an emergency. The employer’s reason for excluding this particular applicant and other applicants who wear hearing aids would apply not only to this court security guard position, but to many federal, state, and local law enforcement jobs in which the ability to hear and respond to emergencies is critical. This employer has regarded the applicant as substantially limited in the ability to work in the class of law enforcement jobs.

OBTAINING, USING, AND DISCLOSING MEDICAL INFORMATION

Before an Offer of Employment Is Made¹⁰

The ADA limits the medical information an employer can obtain from an applicant. 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 conditional job offer. Accordingly, an employer cannot ask an applicant questions such as:

whether he has ever taken a test that revealed a hearing loss;
whether she uses any assistive devices for a hearing impairment (such as a hearing aid) or has done so in the past; or
whether she has any hearing loss due to an on-the-job accident or injury.

However, an employer may ask all applicants whether they will need a reasonable accommodation for the application process. For example, an employer may have a statement on its job announcement or its website directing applicants who need reasonable accommodations (e.g., a sign language interpreter, additional test-taking time) for the application process to contact a designated person in the company’s Human Resources Department.

2. May an employer request medical information about an applicant’s hearing impairment that is obvious or that the applicant has disclosed?

No, the employer may not ask for an applicant’s medical history, records, or other information about a hearing impairment that is obvious or that has been disclosed. However, if an employer reasonably believes that an applicant with a known hearing impairment will need a reasonable accommodation to do the job, it may ask if an accommodation is needed and, if so, what type. In addition, the employer may ask the applicant to describe or demonstrate how s/he could perform the job with or without an accommodation.

Example 5: Julie has a severe hearing impairment in her right ear and is applying to the telephone sales department of a large clothing company. Julie tells the employer of her hearing impairment during the interview. The employer’s sales associates currently wear headsets with earpieces for the right ear. The employer may ask Julie during her interview if she would need a left-sided headset as an accommodation.

3. Does an applicant have to disclose his hearing impairment if it is not obvious?

No, the ADA does not require an applicant to disclose his hearing impairment to a potential employer. Nevertheless, if an applicant knows he needs a reasonable accommodation to complete the hiring process, he must disclose his hearing impairment. Under the ADA, an employer must keep confidential any medical information the applicant discloses. (See Question 8 below, on confidentiality of medical information.)

After An Offer Of Employment Is Made

After an offer of employment is made, but before an applicant begins work, an employer may ask questions about an applicant’s health (including whether the applicant has a hearing impairment) and may require an applicant to take a medical examination, as long as the employer asks the same questions and requires the same examinations of all potential hires for the same type of position.

4. What can an employer do if it learns about an applicant’s hearing impairment after offering a job, but before the individual begins working and it believes that the applicant’s hearing impairment may affect job performance?

If an employer becomes aware of an applicant’s hearing impairment after offering the applicant a job and reasonably believes that the impairment may affect her ability to perform the job’s essential functions (i.e., fundamental job duties) or to perform them safely, the employer may ask the applicant for information to determine whether she can perform the essential functions of the position with or without a reasonable accommodation and whether she would pose a “direct threat” (i.e. a significant risk of harm to herself or others that cannot be reduced through reasonable accommodation). (For more information about “direct threat,” see Question 16, below.)

An employer may only withdraw a job offer made to an individual with a disability if it can demonstrate that the applicant is unable to perform the essential functions of the position with or without a reasonable accommodation or would pose a direct threat.

Example 6: Lydia applies for a position as an aircraft mechanic. After receiving a job offer, she is given a physical examination which includes a hearing test. The hearing test reveals that she has a hearing loss in her left ear. The employer is concerned that in a noisy environment, Lydia will be unable to hear sounds that might alert her to dangers in the work area such as the presence of moving aircraft or other moving vehicles. The employer may not withdraw the job offer simply because it believes Lydia’s hearing impairment makes it impossible for her to work in a high-noise environment. It should determine whether Lydia’s hearing impairment would result in a direct threat, and it may obtain information that is medically related to Lydia’s hearing impairment to make this determination.

Employees¹¹

5. When may an employer ask if a hearing impairment or other medical condition is causing performance problems?

The ADA severely restricts the circumstances under which an employer may obtain information about an employee’s medical condition or require an employee to undergo a medical examination. If an employer 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, it may ask questions about the impairment or require a medical examination.

Example 7: Rupa wears a hearing aid to improve her bilateral, moderate hearing impairment. She was recently promoted from an administrative position to sales associate for a cable company. The new position requires significantly more time on the phone interacting with customers. Although Rupa has received excellent reviews in the past, her latest review was unsatisfactory citing many mistakes in the customer orders she records over the phone. The employer may lawfully ask Rupa if she has any difficulty hearing customers and, if so, whether she would benefit from an accommodation. A possible accommodation could be a captioned telephone that would allow Rupa to communicate verbally while receiving an almost real-time text relay of the conversation.

An employer that does not have a reasonable belief that an employee’s performance problems are related to a hearing impairment may not ask questions about the impairment, but instead should handle the situation in accordance with its policies generally applicable to poor performance.

Example 8: An employee with a profound hearing impairment has received below average evaluations for six months. The employee’s poor performance began when she was not selected for a vacant supervisory position. Moreover, the kinds of performance problems the employee is having – a significant increase in the number of late arrivals and typographical errors in written reports the employee routinely produces – cannot reasonably be attributed to a problem with the employee’s hearing. The employer may not ask for medical information about the employee’s hearing impairment, but instead should counsel the employee about the performance problems or proceed as appropriate in accordance with its policies applicable to employee performance.

6. May an employer require a doctor’s note from an employee who asks for sick leave for reasons related to a hearing impairment?

Yes, if the employer requires all employees to provide a doctor’s note to support the use of sick leave or to verify that sick leave has been used appropriately. However, the employer may not ask for more information than is needed to verify that the leave was taken for appropriate reasons.

Example 9: An employer maintains a leave policy requiring all employees who use sick leave for a medical appointment to submit a doctor’s note upon returning to work. Mark, an employee, uses sick leave to attend an audiologist appointment to adjust his hearing aids. In accordance with its policy, the employer can require Mark to submit a doctor’s note for his absence; however, it may not require the note to include any information beyond that which is needed to verify that Mark used his sick leave properly (such as, the degree of Mark’s hearing loss, the strength of his hearing aids, the results of the adjustment).

7. Are there other instances when an employer may ask an employee about his hearing impairment?

Yes. When an employee requests a reasonable accommodation for a hearing disability and the disability and/or need for accommodation is not obvious, an employer may ask for reasonable documentation showing that the condition is a disability and/or that accommodation is needed.

Disability-related questions and medical examinations are also permitted as part of an employer's voluntary wellness program. (For more information on the type of documentation an employer may obtain in support of a request for reasonable accommodation, see Question 11, below.)

Confidentiality of Medical Information

With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. The information must be kept in files separate from general personnel files and must be treated as a confidential medical record. Information about an applicant’s or employee’s hearing impairment or other medical information may be disclosed only:

to supervisors or managers in order to meet an employee’s need for reasonable accommodation(s) or in connection with an employee’s work restrictions;
to first aid or safety personnel where a condition might require emergency treatment or an employee would require assistance in the event of an emergency;
to government officials investigating compliance with the ADA or similar state and local laws;
as needed for workers’ compensation purposes (for example, to process a claim); and
for certain insurance purposes.

8. May an employer explain to co-workers that an employee is receiving a reasonable accommodation because of a hearing disability?

No. Telling co-workers that an employee is receiving a reasonable accommodation amounts to a disclosure of confidential medical information. An employer, however, may respond to co-workers' questions by explaining that it will not discuss the situation of any employee with co-workers. Additionally, an employer may be less likely to receive questions from co-workers if its employees are educated on the requirements of EEO laws, including the ADA.

ACCOMMODATING INDIVIDUALS WITH HEARING DISABILITIES

Employers are required to provide adjustments or modifications that enable qualified people with disabilities to enjoy equal employment opportunities unless doing so would result in undue hardship (i.e., significant difficulty or expense). Employers should not assume that all persons with hearing impairments will require an accommodation or even the same accommodation.

9. What type of accommodations may an individual with a hearing disability need?¹²

Applicants or employees with hearing disabilities may need one or more of the following accommodations:

a sign language interpreter

Example 10: Simon has a hearing disability and works as a project manager for a regional telephone company. Simon is usually able to use his lip reading ability to communicate individually with his co-workers. However, Simon occasionally requests a sign language interpreter for large-group conferences and meetings, because it is not possible for him to use lip-reading when people who are not in his line of sight are speaking. Absent undue hardship, Simon’s employer would have to provide the sign language interpreter as a reasonable accommodation. (For more information about “undue hardship,” see Question 13, below.)

a TTY, text telephone, voice carry-over telephone, or captioned telephone¹³
a telephone headset
appropriate emergency notification systems (e.g., strobe lighting on fire alarms or vibrating pagers)
written memos and notes (especially used for brief, simple, or routine communications)
work area adjustments (e.g., a desk away from a noisy area or near an emergency alarm with strobe lighting)

Example 11: Ann works as an accountant in a large firm located in a high-rise building in the city. Ann has a large window in her office that faces the street-side of the building. She wears a hearing aid to mitigate her severe hearing impairment. Throughout the workday many exterior noises (e.g. police sirens, car horns, and street musicians) are amplified by Ann’s hearing aid and interfere with her ability to hear people speaking in her office. Ann requests, and her employer agrees, that moving her to a vacant interior office is a reasonable accommodation.

assistive computer software (e.g., net meetings, voice recognition software)

Example 12: Allen, who has a hearing disability, works as an information technology (IT) specialist with a small, Internet-advertising firm. The IT specialist position requires frequent one-on-one meetings with the firm’s president. The firm accommodates Allen by acquiring voice recognition software for him to use in his meetings with the president. The software is programmed to translate the president’s spoken word into written electronic text.

assistive listening devices (ALDs)

Example 13: An employer has an annual all-employee meeting for more than 200 employees. Thelma, who has a severe hearing impairment, requests the use of an ALD in the form of a personal FM system. Speakers would wear small microphones that would transmit amplified sounds directly to a receiver in Thelma’s ear. The ALD is a reasonable accommodation that will allow Thelma to participate in the meeting.

augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice
communication access real-time translation (CART), which translates voice into text at real-time speeds

Example 14: Kendall works as an associate for an international consulting firm. Kendall has a hearing disability for which he uses a hearing aid and lip reading. His company sometimes conducts video-conferencing meetings with clients in other countries. During these meetings, Kendall finds it difficult to participate because some of the clients speak with foreign accents and the video feedback is not continuous. Kendall requests the use of remote CART services to accommodate his hearing disability during international client meetings. The requested accommodation would translate the client’s spoken word on Kendall’s notebook computer monitor at an almost real-time speed. This accommodation would allow Kendall to participate fully in the meetings.

time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable.¹⁴

Example 15: Beth is deaf and requests leave as a reasonable accommodation to train a new hearing dog. Hearing dogs assist deaf and hard of hearing individuals by alerting them to a variety of household and workplace sounds such as a telephone ring, door knock or doorbell, alarm clock, buzzer, name call, speaker announcement, and smoke or fire alarm. A hearing dog is trained to make physical contact and direct a person to the source of the sound. Under her employer’s leave policy, Beth does not have enough annual or sick leave to cover her requested absence. The employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship.

altering an employee’s marginal (i.e., non-essential) job functions

Example 16: Maria, a librarian, is primarily responsible for cataloguing books, writing book summaries, and scheduling book tours. Recently, Maria has had to fill in as a desk librarian since the regular librarian is on vacation. Maria has a severe hearing disability and uses a hearing aid. She finds it difficult to hear patrons if there is any background noise. She asks to switch her front desk duties with another librarian who processes book orders transmitted over the phone or Internet. Since working at the front desk is a minor function of Maria’s job, the employer should accommodate the change in job duties.

reassignment to a vacant position

Example 17: Sonny, a stocking clerk on the floor of a large grocery store, develops Ménière’s disease, which produces a loud roaring noise in his ears for long periods of time. It is difficult for him to hear customers and co-workers on the floor because of music and frequent announcements played over the store’s public address system and background noise in the store, particularly during busy periods. The store manager tried several unsuccessful accommodations. Upon request, the employer should reassign the employee to a vacant position as a stocking clerk in the warehouse at the same location. The employee is qualified for the reassignment position and the warehouse is a quieter environment with fewer background sounds.

other modifications or adjustments that allow a qualified applicant or employee with a hearing disability to enjoy equal employment opportunities.

Example 18: Manny is hired as a chemist for a pharmaceutical company. He has a hearing disability and communicates primarily through sign language and lip reading. Shortly after he is hired, he is required to attend a two-hour orientation meeting. The meeting includes a brief lecture session followed by a series of video vignettes to illustrate key concepts. To accommodate his hearing disability, Manny requests a seat near the trainer, closed captioning during the video segments, and adequate lighting to allow him to read lips throughout the meeting. The employer grants these reasonable accommodations to allow Manny to participate fully during the orientation session.

10. How should someone with a hearing disability request a reasonable accommodation?

No “magic words” (such as “ADA” or “reasonable accommodation”) are required. An applicant or employee simply has to inform his employer (verbally or in writing) that he needs an adjustment or change in the workplace or in the way things are usually done because of a hearing impairment.

Example 19: Lionel has a hearing disability and is employed as an electrician. As a team leader, Lionel is responsible for receiving his team’s list of daily work sites and any accompanying special instructions, traveling to the sites with his team, and directing the day’s work at each site. Lionel receives the list of assignments and accompanying special instructions from the company owner during daily morning meetings attended by all of the team leaders. The special instructions are given verbally. One morning, at the conclusion of a team leader meeting, Lionel passes a note to the owner requesting that all special instructions for his team’s assignments be written down, because he is having difficulty hearing the verbal instructions. Lionel has requested a reasonable accommodation.

A family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of the individual with a hearing impairment. For example, an individual with a hearing disability may submit a note from her doctor requesting a change in the location of her work area due to excessive noise that interferes with her hearing aid.

An individual with a hearing disability is not required to request an accommodation needed for the job at a particular time (e.g., during the application process), and an employer may not refuse to consider a request for 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 reasonable accommodation before performance or conduct problems occur. (See Question 14, below.)

11. May an employer request documentation when an individual with a hearing impairment requests a reasonable accommodation?

Sometimes. When a person's hearing impairment is not obvious, the employer may ask the person to provide reasonable documentation showing the existence of a disability and why a reasonable accommodation is needed. The request for documentation must be reasonable. 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 for the employer to determine whether an accommodation is needed.

Example 20: Luíz, who has a hearing disability and communicates primarily through lip reading and speech, works as a programmer for an Internet security firm. The firm acquires a new client and promotes Luíz to be the senior programmer responsible for all consultations regarding the Internet security system design for the new client. Luíz’s new assignment requires frequent phone conversations and teleconference meetings that do not allow for the use of Luíz’s lip reading skills to aid in his verbal comprehension. As a result, Luíz’s audiologist recommends, and Luiz requests, the use of a voice carry-over phone, which would provide an almost real-time text relay of the client’s speech and also allow the client to hear Luíz. Because Luiz’s hearing impairment is not an obvious disability, his employer may lawfully request medical documentation to verify his disability.

12. Does an employer have to provide the reasonable accommodation that an individual with a disability wants?

No. An employer has a duty to provide a reasonable accommodation that is effective to remove the workplace barrier. An accommodation is effective if it will provide an individual with a disability with 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.

Example 21: An employee with a bilateral hearing disability requests use of communication access real-time translation (CART) for an upcoming training. In place of the CART device, the employer suggests an assistive listening device (ALD) because it is less expensive than CART. Twelve managers and supervisors are scheduled to take the training in a conference room at the employer’s offices. Much of the information will be presented in a lecture format, accompanied by slides with printed information. The size of the room, the number of participants in the training, and the format of the training make it possible for the employee to use a portable assistive listening system effectively. The employer may, therefore, provide an ALD instead of CART under these circumstances.

Example 22: A deaf employee requests a sign language interpreter for regular staff meetings. The employer suggests that a co-worker could take notes and share them with the deaf employee or that a summary of the meeting could be prepared. These alternatives are not effective, because they would not allow the deaf employee to ask questions and participate in discussions during the meetings as other employees do. Absent undue hardship, the employer must provide a sign language interpreter for the meetings.

13. Does an employer have to provide accommodations that would be too difficult or expensive?

An employer is not required to provide accommodations that would result in an undue hardship (i.e., significant difficulty or expense). If an employer determines that the cost of a reasonable accommodation would cause an undue hardship, it should consider whether some or all of the accommodation’s cost can be offset. For example, in some instances, state vocational rehabilitation agencies or disability organizations may be able to provide accommodations at little or no cost to the employer. There are also federal tax credits and deductions to help offset the cost of accommodations,¹⁵ and some states may offer similar incentives. However, an employer may not claim undue hardship solely because it is unable to obtain an accommodation at little or no cost or because it is ineligible for a tax credit or deduction.

Even if a particular accommodation would result in undue hardship, however, an employer should not assume that no accommodation is available. It must consider whether there is another accommodation that could be provided without undue hardship.

14. 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 (i.e., a fundamental job duty), 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.

15. Is it a reasonable accommodation for an employer to make sure that an employee wears a hearing aid or uses another mitigating measure?

No. The ADA does not require employers to monitor an employee to ensure that he uses 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 hearing.

16. What kinds of reasonable accommodations are related to the “benefits and privileges” of employment?

Reasonable accommodations related to the “benefits and privileges” of employment include those accommodations that are necessary to provide an employee with a hearing disability equal access to information communicated in the workplace, the opportunity to participate in employer-sponsored events (e.g., training, meetings, social events, award ceremonies), and the opportunity for professional advancement.

Example 23: Karrin, who is deaf, works as an associate in a large investment firm. Every December, the partner in charge of the team for which Karrin works holds a party at his residence for all of the team’s members and a number of the firm’s clients. Upon Karrin’s request, her employer provides her a sign language interpreter to allow Karrin to fully participate in the social event
.
An employer will not be excused from providing an employee with a hearing disability with a necessary accommodation because the employer has contracted with another entity to conduct the event.

Example 24: An employer offers its employees a training course on organization and time management provided by a local company with which the employer has contracted. An employee who is deaf wants to take the course and asks for CART services or a sign language interpreter. The employer claims that the company conducting the training is responsible for providing what the deaf employee needs, but the company responds that the responsibility is the employer’s. Even if the company conducting the training has an obligation, under Title III of the ADA,¹⁶ to provide “auxiliary aids and services,” which would include CART services and sign language interpreters, this fact does not alter the employer’s obligation to provide the employee with a reasonable accommodation for the training. ¹⁷

CONCERNS ABOUT SAFETY

17. When may an employer prohibit an employee with a hearing disability from doing a job because of safety concerns?

If an employee would pose a “direct threat” (i.e. a significant risk of substantial harm to herself or others) when working in a particular position, even with a reasonable accommodation, then an employer can prohibit her from performing that job. Any potential harm must be substantial and likely to occur.

An employer must consider the following to assess if an employee or applicant poses a direct threat:

the duration of the risk involved;
the nature and severity of the potential harm;
the likelihood the potential harm will occur;
the imminence of the potential harm; and
the availability of any reasonable accommodation that might reduce or eliminate the risk.

Example 25: An employee with a hearing disability requests training to operate a forklift machine at a large hardware store. For safety reasons, the employer requires that forklift operators be able to communicate with a spotter employee while operating the machine. The employee suggests that he wear a vibrating bracelet to allow him to communicate with the spotter. The employer has attempted to use vibrating bracelets in the past without success because users cannot distinguish the vibrations between the forklift and the bracelet. The employee tries to use the vibrating bracelet, but experiences the same problem. Assuming no other accommodations are available, the employer may deny the employee training on a forklift.¹⁸

Example 26: A school district denies an applicant with a hearing disability a job as a school bus driver for elementary school students, believing that she will not be able to drive safely and will not be able to monitor students, especially in the event of a medical or other emergency. The applicant has a clean driving record and has previously performed jobs transporting elderly patients by van to doctor’s appointments and social events. Based on past experiences with accommodations, the applicant could monitor students effectively – and without compromising her driving – if an additional mirror highlighting the rear of the bus were installed. The mirror, placed above the driver, would allow her to better monitor students whose conversations she may not be able to hear or understand as well as those students located in the front of the bus. This school district also typically assigns aides to ride with drivers on the busiest routes. Under these circumstances, the school district cannot demonstrate that this applicant would pose a direct threat to the safety of others, and its refusal to hire her would violate the ADA.¹⁹

18. What should an employer do when federal law prohibits it from hiring anyone with a certain level of hearing loss?

An employer has a defense to a failure-to-hire claim under the ADA if another federal law actually prohibits it from hiring someone with a hearing impairment for a particular position. However, the employer should ensure that the federal law requires, rather than permits, exclusion of the individual with a disability and that there are no applicable exceptions.

Example 27: Terry has a severe hearing impairment that is slightly improved by her cochlear implant. She applies for a position driving large trucks. These positions are subject to hearing requirements and other standards enforced by the Department of Transportation (DOT). The employer may rely on DOT’s hearing requirement in denying Terry employment. However, the employer may not rely on the DOT hearing requirement to exclude Terry from a position driving smaller trucks which are not subject to DOT’s standards. Instead, the employer would have to establish that Terry would pose a direct threat, within the meaning of the ADA, if it denied her a position driving smaller trucks because of her hearing disability.

HARASSMENT

Employers are prohibited from harassing or allowing employees with disabilities to be harassed in the workplace. When harassment is brought to an employer's attention, management and/or the supervisor must take steps to stop it.

19. What constitutes illegal harassment under the ADA?

The ADA prohibits unwelcome conduct based on disability that is sufficiently severe or pervasive to create a hostile or abusive work environment. Acts of harassment may include verbal abuse, such as name-calling, and behavior, such as offensive graphic and written statements or physically threatening, harmful or humiliating actions. The law does not protect workers with disabilities (or any workers) from merely rude or uncivil conduct. To be actionable, conduct related to an employee's hearing disability must be perceived by the affected individual as abusive and must be sufficiently severe or pervasive that a reasonable person would perceive it as hostile and abusive.

Example 28: Leonard works as a stocker at a local electronics store. Leonard lost his hearing two years ago as the result of a rare and debilitating illness. Since Leonard’s recovery and return to work, his co-workers have constantly taunted him about his hearing impairment and recklessly driven the forklift near him while yelling for him to move. The employees know that Leonard cannot hear their warnings and often laugh at Leonard’s startled reaction when he sees the forklift approaching him. Leonard complains to his supervisor in accordance with his employer’s anti-harassment policy. The employer must promptly investigate and address the harassing behavior.

20. What should employers do to prevent and correct harassment?

Employers should make clear that they will not tolerate harassment based on a disability or on any other basis (i.e., race, color, sex, religion, national origin, or age). This can be done in a number of ways, including a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report harassment to a manager or other designated official. Finally, employers should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action. For more information on the standards governing harassment under federal EEO laws, see the EEOC’s Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, available at http://www.eeoc.gov/policy/docs/harassment.html.

RETALIATION

The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an employment discrimination investigation, proceeding, or litigation. Persons who believe that they have been retaliated against may file a charge of retaliation with the EEOC as described below.

LEGAL ENFORCEMENT

21. What should someone do who believes that his or her rights under the ADA may have been violated?

Private Sector/State and Local Governments

An applicant or employee who believes that his employment rights have been violated on the basis of a hearing disability and wants to make a claim against an employer must file a “charge of discrimination” with the EEOC. The charge must be filed by mail or in person with a local EEOC office within 180 days from the date of the alleged violation. The 180-day filing deadline is extended to 300 days if a state or local anti-discrimination law also covers the charge.²⁰

The EEOC will notify the employer of the charge and may ask for a response and supporting information. Before a formal investigation, the EEOC may select the charge for its mediation program. Participation in mediation is free, voluntary, and confidential. Mediation may provide the parties with a quicker resolution of the case.

If mediation is not pursued or is unsuccessful, the EEOC investigates the charge to determine if there is “reasonable cause” to believe discrimination occurred. If reasonable cause is found, the EEOC will then try to resolve the charge. In some cases, where the charge cannot be resolved, the EEOC will file a court action. If the EEOC finds no discrimination, or if an attempt to resolve the charge fails and the EEOC decides not to file suit, it will issue a notice of a “right to sue,” which gives the charging party 90 days to file a lawsuit. A charging party also can request a notice of a “right to sue” from the EEOC 180 days after the charge first was filed with the EEOC.

For a detailed description of the process, please refer to the EEOC website at http://www.eeoc.gov/charge/overview_charge_filing.html.

Federal Government

An applicant or employee who believes that her employment rights have been violated on the basis of a hearing disability and wants to make a claim against a federal agency must file a complaint with that agency. The first step is to contact an EEO Counselor at the agency within 45 days of the alleged discriminatory action. The individual may choose to participate in either counseling or in Alternative Dispute Resolution (ADR) if the agency offers this alternative. Ordinarily, counseling must be completed within 30 days and ADR within 90 days.

At the end of counseling, or if ADR is unsuccessful, the individual may file a complaint with the agency. The agency must conduct an investigation unless the complaint is dismissed. If a complaint contains one or more issues that must be appealed to the Merit Systems Protection Board (MSPB), the complaint is processed under the MSPB’s procedures. For all other EEO complaints, once the agency finishes its investigation the complainant may request a hearing before an EEOC administrative judge or an immediate final decision from the agency.

In cases where a hearing is requested, the administrative judge issues a decision within 180 days and sends the decision to both parties. If the agency does not issue a final order within 40 days after receiving the administrative judge’s decision, the decision becomes the final action of the agency.

A complainant may appeal to EEOC an agency’s final action within 30 days of receipt. The agency may appeal a decision by an EEOC administrative judge within 40 days of receiving the administrative judge's decision.

For more information concerning enforcement procedures for federal applicants and employees, visit the EEOC website at http://www.eeoc.gov/facts/fs-fed.html.

Endnotes

¹ Sergei Kochkin, Ph.D., Better Hearing Institute, The Prevalence of Hearing Loss, http://www.betterhearing.org/hearing_loss/prevalence.cfm .

² Sergei Kochkin, Ph.D., MarkeTrak VII: Hearing Loss Population Tops 31 Million People, The Hearing Review, 2005, Vol. 12, No. 7, at 16.

³ Chart is based on data derived from A Nation Online, Economic and Statistics Administration/National Telecommunications and Information Administration, U.S. Department of Commerce, February 2002, based on Current Population Survey (CPS) of September 2001.

⁴ Centers for Disease Control and Prevention, Developmental Disabilities, http://www.cdc.gov/ncbddd/dd/ddhi.htm .

⁵ Id.

⁶ National Association of the Deaf, The Difference between Deaf and Hard of Hearing, http://www.nad.org/site .

⁷ Centers for Disease Control and Prevention, Developmental Disabilities, http://www.cdc.gov/ncbddd/dd/ddhi.htm .

⁸ In addition, there are four types of hearing loss that generally describe the origin of the hearing loss within the ear. Sensorineural hearing losses are the most common and primarily involve damage to the nerve fibers in the inner ear. These nerve fibers transmit the signals that the brain interprets as patterns of sound. Some types of sensorineural hearing loss can be improved through hearing aids or cochlear implants. Conductive hearing loss is often a treatable disorder involving a blockage in the outer or middle ear that impedes the transmission of sound energy to the brain. Mixed hearing loss is any combination of sensorineural or conductive hearing loss caused by related or isolated conditions. Finally, some sources recognize a fourth type of hearing loss. Central hearing loss primarily involves a permanent condition where the pathway from the inner ear to the brain is damaged. See Id.

⁹ National Association of the Deaf, The Difference between Deaf and Hard of Hearing, http://www.nad.org/site.

¹⁰ For more information about what constitutes a disability-related inquiry and medical examination and the circumstances under which an employer may ask questions about disability or require medical examinations before someone begins work, see Enforcement Guidance: Preemployment Disability-Related questions and Medical Examinations (October 10, 1995), http://www.eeoc.gov/policy/docs/preemp.html.

¹¹ For more information about when an employer may ask disability-related questions or conduct medical examinations of employees, see Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000), http://www.eeoc.gov/policy/docs/guidance-inquiries.html.

¹² See also, Job Accommodation Network’s Searchable Online Accommodation Resource (SOAR), http://www.jan.wvu.edu/soar/hear.html .

¹³ A text telephone or teletypewriter (TTY) allows a telephone user to send typed messages to another caller and to receive typewritten messages from the caller either directly (if the caller is also using a TTY) or through a telephone relay service (TRS) operator. A voice carry-over telephone allows someone with a hearing impairment to communicate orally over the telephone and to receive text communications from the other caller that are transcribed by a TRS operator. A captioned telephone allows users with hearing impairments to receive communications over the telephone orally while receiving an almost simultaneous text translation.

¹⁴ For more information regarding an employer’s responsibility to provide leave for covered individuals, see the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (November 1995), http://www.eeoc.gov/policy/docs/fmlaada.html and Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Questions 22 and 23 (October 17, 2002), http://www.eeoc.gov/policy/docs/accommodation.html.

¹⁵ See Know the Rules Regarding Tax Incentives for Improving Accessibility for the Disabled (2003), http://www.irs.gov/businesses/small/article/0,,id=113382,00.html. For additional information on tax benefits, contact the U.S. Internal Revenue Service at 800-829-3676 (voice) or 800-829-4059 (TDD).

¹⁶ In an effort to eliminate discrimination against individuals with disabilities, Title III of the Americans with Disability Act requires businesses and non-profit organizations that are public accommodations to comply with basic nondiscrimination and building accessibility requirements, provide reasonable modifications to policies and practices, and supply auxiliary aids (e.g., assistive listening devices, note takers, written materials, taped texts, and qualified readers) to ensure effective communication with persons with disabilities. For more information on the requirements of Title III of the ADA, visit the website for the U.S. Department of Justice, Civil Rights Division, Disability Rights Section available at http://www.usdoj.gov/crt/drs/drshome.htm .

¹⁷ An employer should include, as part of any contract with an entity that conducts training, provisions that allocate responsibility for providing reasonable accommodations. This can help to avoid conflicts or confusion that could arise and result in an employee being denied a training opportunity. An employer should also remember, however, that it remains responsible for providing a reasonable accommodation that an employee needs to take advantage of a training opportunity, regardless of how that responsibility has been allocated in the contract.

¹⁸ See Nix v. Home Depot USA, Inc., No. 1:02-CV2292MHS, 2003 WL 22477865 (N.D. Ga. Oct. 16, 2003).

¹⁹ See Rizzo v. Children’s World Learning Center, 213 F.3d 209 (5th Cir. 2000).

²⁰ Many states and localities have disability anti-discrimination laws and agencies responsible for enforcing those laws. The EEOC refers to these agencies as “Fair Employment Practices Agencies (FEPAs).” Individuals may file a charge with either the EEOC or a FEPA. If a charge filed with a FEPA is also covered under the ADA, the FEPA will “dual file” the charge with the EEOC but usually will retain the charge for investigation. If an ADA charge filed with the EEOC is also covered by a state or local disability discrimination law, the EEOC will “dual file” the charge with the FEPA but usually will retain the charge for investigation.

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