On January 24, 2023, the Equal Employment Opportunity Commission (EEOC) released the technical assistance document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act” which updates a similar publication originally issued in 2014. This is a summary of this recent guidance. The complete EEOC update can be accessed online at the following link.
Deafness or hearing condition as a “disability”
Similar to any other disability, an individual with a hearing loss must show that he or she has an impairment that substantially limits a major life activity. A determination of the limitation must be made without considering the effects of any mitigating measures such as hearing aids or a cochlear implant.
A prospective employer cannot ask a job applicant whether he or she has a hearing condition, has a cochlear implant, or wears hearing aids or has a hearing loss, even if the hearing loss is obvious (for example, the applicant wears hearing aids). Nor does the ADA require an individual with a hearing loss to disclose this unless the individual needs a reasonable accommodation (such as sign language interpreter) in order to participate in the application process.
The employer can ask an applicant questions about his or her ability to perform the essential functions of the position with or without reasonable accommodation. Examples of permissible inquiries include: ability to communicate on the phone, to comply with legally mandated safety standards or licensing, or to work in a noisy environment.
Post offer Inquiries
If an employer learns after making an offer of employment that an employee has a hearing loss, he cannot withdraw the offer solely on this basis. If the employee is able to perform the essential functions of the job, with or without accommodation, the employer cannot assume that he cannot or that the employee cannot work safely.
In order to exclude an employee on the basis of safety concerns, the employer must show that the employee poses a direct threat (i.e., a significant risk of harm) to the employee’s own safety or that of others that cannot be reduced or eliminated with reasonable accommodation.
An employer can also ask an employee with a hearing loss whether job performance issues are related to the employee’s hearing loss and if so, whether there is an accommodation that could assist the employee in performing the essential job functions.
The EEOC includes helpful information about available accommodations for individuals with hearing loss. By use of hypothetical examples, the EEOC identifies possible accommodations such as sign language interpreter, assistive listening devices (ALDs), written materials, note taking assistance, work area adjustments (for example, a workspace that is quiet), altering marginal job duties, and reassignment and time off even when leave has been exhausted.
The update also identifies technology that can be helpful to an employee with hearing loss. This includes video relay service for telephone communication, a hearing aid compatible headset, telephone amplifier, phone adapters for individuals using hearing aids or having cochlear implants, direct streaming from a device to hearing aids or cochlear implants, as well as captioning and real time transcription.
It is also important to consider work place safety adaptations such as strobe lighting on fire alarms, hearing protection equipment, and seating that allows an unimpeded view of a speaker, presenter or trainer.
Because there is no “one size fits all” accommodation for individuals with hearing loss, the update is a good reminder that it is important to ask the employee what accommodation he or she needs in order to perform the essential job functions.
Remote work environments can be particularly challenging for individuals with hearing loss. There are a variety of technical accommodations that can be helpful for remotely working employees, such as captioning.
Finally, there are extensive public and private resources that identify reasonable accommodations, including, for example, the free Job Accommodation Network (JAN): (http://askjan.org).
The update appropriately reminds employers not to make assumptions based on stereotypes and misinformation about whether individuals with hearing loss can work safely. As with all disability related accommodations, individualized assessment is important including analysis of the particular workplace and job duties.
Careful evaluation is required in order for an employer to exclude an individual with a hearing loss because he or she poses a “direct threat”. Evaluating direct threat requires assessment of the employee, the essential job functions, the workplace, and/or a reasonable medical judgment that relies on current medical knowledge.
The employer also must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that potential harm will occur, and the imminence of potential harm. Even if the employer determines that the employee could pose a direct threat to himself or others the analysis does not end there. The employer must also evaluate whether a reasonable accommodation would reduce or eliminate the risk.
An employer does not have to hire a person with a hearing condition for a particular position when to do so would violate Federal law (for example, DOT requirements for driving trucks).
The ADA prohibits harassment based on disability. Prohibited conduct can include offensive jokes, mocking, name-calling, mouthing words to a Deaf person to see if he or she can “hear”, imitating sign language, and teasing or threatening behavior.
Though the principles described in the EEOC’s updated guidance are not new, the publication contains very helpful and specific examples of situations that can occur involving applicants and employees who are Deaf or hard of hearing. It also discusses resources for identifying reasonable accommodations.
If you have further questions, please do not hesitate to contact Vicki M. Crochet or any member of the Taylor Porter Employment, Labor and Benefits Practice Group.
About Vicki Crochet: Taylor Porter Partner Vicki Crochet, practicing law since 1980, is the Practice Leader of the Firm’s Employment, Labor and Benefits practice, and is the Vice-Chair of the Taylor Porter Executive Committee. Vicki practices in all areas of employment law, advising clients regarding policies and procedures; representing them before governmental agencies including the EEOC, OFCCP, the Louisiana Commission on Human Rights (LCHR), and the Louisiana Civil Service Commission; and handling all aspects of employment litigation. Vicki and her daughter Kate Cusimano, who is Deaf, have done presentations on Deaf Culture, Sign Language and Communicating with individuals with hearing loss.
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