If you’re an employment law nerd like me, in addition to being the envy of your neighborhood, you also know that the U.S. Equal Employment Opportunity Commission does not shy away from bringing failure-to-accommodate claims on behalf of deaf individuals. Look at all of them!
With limited resources at its disposal, the EEOC is mitigating the cost of filing more lawsuits by educating employers on how the Americans with Disabilities Act (ADA) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions. It’s all in this updated resource document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act.”
In particular, this document explains:
- when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures;
- what types of reasonable accommodations applicants or employees with hearing disabilities may need;
- how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
- how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.
Here are some additional snippets from the resource document:
In general, before offering an individual a job, avoid asking about hearing disabilities or any disabilities. But suppose an applicant has an obvious impairment or has voluntarily disclosed an impairment and the employer reasonably believes that the applicant will require an accommodation to complete the application process or to perform the job because of the condition. In that case, the employer may ask whether the applicant will need an accommodation and what type.
Pre-offer, it’s best to stick to questions about the applicant’s ability to perform the position’s essential functions, with or without reasonable accommodation, such as whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment.
After making a job offer, an employer may ask questions about the applicant’s health (including questions about the applicant’s disability) and may require a medical examination as long as all applicants for the same type of job are treated equally.
For current employees, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. An employer also may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it.
Generally, an employer must keep confidential any medical information it learns about an applicant or employee. But, it may involve supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions.
The EEOC also provides a non-exhaustive list of potential accommodations for individuals with hearing disabilities. They include a sign language interpreter, assistive technology, appropriate written memos and notes, note-taking assistance, work area adjustments, time off, altering marginal (non-essential) job functions, and reassignment. In certain situations, an employer must provide multiple accommodations. Other times, it won’t have to provide any if doing so creates an undue hardship or the individual poses a direct threat to themselves or others.
If you’ve made it this far, you might as well read the entire resource document for yourself.