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Can we make deaf employee–and his boss–learn and communicate with sign language?

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in Employment Law,Human Resources

Q. We recently hired a deaf employee who communicates exclusively by written notes. We are finding that this process is time-consuming and harms productivity. May we require the deaf worker and his supervisor to learn sign language? Can we terminate them if they refuse?

A. With regard to the supervisor, the answer is relatively straightforward: Employers generally have the right to require employees—especially managers—to acquire the skills the employer believes are necessary to effectively perform the functions of the job. 

Requiring the deaf worker to learn sign language, on the other hand, may lead to legal liability.

The ADA requires employers to reasonably accommodate qualified individuals with disabilities. Allowing a deaf worker to write notes to communicate in the work­­place will generally be considered to be a reasonable accommodation (unless it creates an undue hardship).

In an informal letter opinion issued earlier this year, the EEOC concluded that employers may not require deaf workers to learn sign language. In reaching this determination, the EEOC noted that an employer may choose among available accommodations. However, providing “a sign language interpreter for an individual who does not know sign language is not an effective accommodation.”

The EEOC also noted that guidance released earlier this year—“Enforcement Guidance on Reasonable Accommodation”—states that an employer is not relieved of the obligation to provide a reasonable accommodation simply because an individual fails to take prescribed medication, obtain treatment or use an assistive device.

The EEOC applied this finding to requiring deaf ­workers to learn sign language. It stated: “An employer could not refuse to provide a reasonable accommodation, such as communicating through the use of notes, for an individual who is deaf simply because the em­­ployer believes the individual should have learned sign language. Of course, a deaf person who does not know sign language might be unqualified for a position if communicating through the use of notes would not be effective or would pose an undue hardship, and if there are no other effective accommodations available.”

Thus, you may take adverse employment action against the deaf worker for refusing to learn sign language only if his failure to do so makes him unqualified for the job or if allowing him to communicate by notes would cause your company to experience an undue hardship.

In deciding how to react, it is important to note that you will face a high burden of proof if you attempt to assert either of those defenses.

{ 2 comments… read them below or add one }

Chris Haulmark May 21, 2012 at 10:04 am

I am really curious about what kind of job this is. If it’s something that requires ASL skills to do a job – then ALL of the employees involved must learn ASL – not just for the ASL interpreter to be used.

Think about this – Spanish speaking people who do not know English. Would they be refused a job if all the other employees use English as the choice of communication language? Then you see why the Spanish speaking folks will learn English.

Deaf people cannot just learn English because obviously it’s an disability that prevent themselves from being able to “speak” and “hear” English. Writing notes, using laptop to type, and whiteboards are all reasonable provided that this Deaf employee is decent with the English writing/reading skills.

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Sheryl May 20, 2012 at 3:12 pm

There are other means of accommodating the deaf individual. Use text or service called CAPTEL thru the phone. Not perfect but works well with non signing deaf people.

However most deaf people learn to either sign or lipread. Something in this situation is odd. I am a specialist who works with deaf people daily. Contact a deaf service center in your area or state rehab service for resources.

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