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Accommodating hearing-Impaired employees, applicants

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in Discrimination and Harassment,Employment Law,Human Resources

The ADA prohibits job discrimination against any qualified person who has a disability.

Employees or applicants have a qualified disability if they have "a physical or mental impairment that substantially limits one or more major life activities." The ADA also covers people who "have a record of such an impairment." Plus, people earn ADA protection if you regard them as having a disability, even if they don't.

To earn ADA job protection, people must be able to perform the job's essential functions, with or without a reasonable accommodation.

Employers and employees must work together in a good-faith, interactive process to choose reasonable ADA accommodations. Employers ultimately determine which accommodations are reasonable, but this determination can be second-guessed by the courts.

The ADA covers employers with 15 or more employees. Some states have laws similar to the ADA that cover smaller employers.

What's new

The EEOC, the federal agency that enforces the ADA, recently issued guidance to help employers accommodate hearing-impaired employees and applicants. The guidance provides employers with real-life examples of hearing-impaired employees and what rights they possess under the ADA.

How to comply

Hearing is a "major life activity," but not all hearing impairments are disabilities covered by the ADA. Hearing impairments can only be covered disabilities if they substantially limit a major life activity.

The ADA requires employers to evaluate each disabled person on a case-by-case basis in light of the job the organization expects the person to perform. Example from the EEOC guidance:

"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 had difficulty hearing in conversations because vowel sounds tend to occur at lower frequencies that she cannot distinguish. She often asks others to speak slower or louder, or to repeat statements she did not initially hear or understand. This applicant is substantially limited in hearing."

This example is striking because you no doubt know someone like this, but probably don't think of the individual as disabled.

Hearing aids. Ever since a key 1999 Supreme Court ruling (Sutton v. United Airlines), employers have had to wrestle with the concept of mitigating measures. In many cases, a person with hearing loss can compensate through the use of hearing aids.

The EEOC guidance says people can still be deemed "disabled" if their hearing aid doesn't completely fix the hearing problem. EEOC example:

"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 measures (i.e., the hearing aid)."

On the other hand, if the hearing aid allowed the person to hear normally, he would not be disabled.

Accommodations such as sign language interpreters or even the person's lip-reading ability don't count as mitigating measures. Therefore, people who can understand conversations through these methods are disabled under the ADA. Employers should review their policies and procedures in light of the EEOC's guidance and adjust accordingly.  

Online resources

Access the new EEOC guidance, Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act, at www.eeoc.gov/facts/deafness.html.

For assistance in finding accommodations for disabled workers, contact the Job Accommodation Network at www.jan.wvu.edu.

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