Technological changes and medical advances have altered the workplace since 2014, when the U.S. Equal Employment Opportunity Commission (EEOC) first issued guidance for how employers must accommodate job applicants and employees with hearing disabilities. In light of the past decade’s developments, the EEOC has updated its guidance, providing increased clarity to employers on how they can best respond to disabilities in the workplace.
The EEOC sought collaboration from the National Association of the Deaf (NAD) in formulating this guidance. NAD rejects the term “hearing impaired” because the overwhelming majority of deaf individuals prefer to be called “deaf” or “hard of hearing.” The EEOC recognized that “hearing impaired” and “disability” are not the preferred terms of the deaf community, but still used the terms “impairment” and “disability” because of their legal meaning.
The community of people who identify as deaf or hard of hearing is diverse because of the manifold ways someone can become deaf (e.g., illness, injury, heredity, age, noise exposure), their levels of hearing, the ages of onset, communication methods used (e.g., ASL, vocalization), and cultural identities.
The ADA covers most persons who are deaf or hard of hearing because they are substantially limited in the major life activity of hearing, and the limitation is not transitory or minor. Employers should look at the individual’s hearing ability apart from any mitigating measures, such as a hearing aid, when determining whether that individual has a disability within the meaning of the ADA. If the individual is disabled according to the ADA, then it is unlawful to deny them a reasonable accommodation or otherwise treat them differently and worse than individuals who are not disabled.
The EEOC reiterated that employers must not deny employment opportunities to individuals who are deaf or hard of hearing because of stereotypical assumptions that hearing conditions can cause safety hazards, increase costs, or are incompatible with communication in fast-paced environments.
The EEOC guides when an employer can ask questions about hearing ability, and what questions they can ask.
Pre-Offer Job Applicants
For job applicants, an employer cannot ask about hearing conditions (past or present) or treatment related to hearing conditions prior to making a job offer. Illegal questions include: “Do you use a hearing aid?” or “Have you had a medical procedure related to your hearing?” or “Do you have a condition that affects your hearing?”
Instead, an employer may ask, “Can you respond quickly to instructions in a noisy, fast-paced work environment?” or “Can you meet the legally mandated safety standards required to perform this job?”
Employers may not ask questions about obvious hearing conditions or ask follow-up questions when an applicant voluntarily discloses a non-obvious hearing condition. However, the employer may ask if the applicant will require an accommodation to complete the application process or to perform the job, provided the employer reasonably believes that an accommodation may be necessary. The employer must provide a reasonable accommodation to the job applicant for completing the application even if the employer believes it cannot offer a reasonable accommodation on the job.
Job applicants are under no duty to disclose a current or past disability prior to accepting a job offer unless they will need an accommodation for the application process. The employer must keep any disclosed medical information confidential.
Post-Offer Job Applicants
After tendering a conditional job offer, an employer should advise that the applicant can request any needed accommodations. Employers may ask questions about the applicant’s health and may require a medical exam, provided they ask all applicants for that type of job to submit to the same exam and answer the same questions. An employer may ask for more medical information about a disclosed condition and request medical documentation that assesses the individual’s ability to perform the job functions safely.
Only after the employer has made a conditional job offer, and an applicant has disclosed a hearing condition, may the employer ask specific questions about the hearing conditions. Acceptable questions include those related to specific hearing limitations, reasonable accommodations needed, and the duration of the condition. An employer may not withdraw a conditional offer of employment when the individual is able to perform the essential functions of the job with or without a reasonable accommodation.
Current Employees
An employer may be tempted to ask an employee who is observed to be struggling whether a disability is causing their performance issue. Generally, an employer may ask questions related only to those disabilities that have been disclosed. However, if the employer reasonably believes the employee’s performance problems are related to a medical condition, then the employer may ask if the employee needs a reasonable accommodation to perform a job.
When the employer is concerned about the employee’s ability to safely perform the essential functions of the job, the employer may ask questions to the extent necessary to support a request for a reasonable accommodation, to enable participation in a voluntary wellness program, and to verify the use of sick leave related to the hearing condition.
Communications to Third Parties
Employers must be cautious about disclosing information related to an employee’s disability, and may only disclose such information to an employee’s supervisors or managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions. Employers may also disclose to first aid and safety personnel, to individuals investigating ADA compliance, or for worker’s compensation or insurance purposes. Employers may not communicate to co-workers about the reason an employee with a hearing condition is being treated differently, but rather remind the employee that privacy is important for all employees.
Reasonable Accommodations
Unless providing a reasonable accommodation is unduly burdensome, employers must offer applicants and employees with hearing conditions access to reasonable accommodations. Examples include the following:
- Altering non-essential job functions
- Time off if paid leave is exhausted or unavailable
- Reassignment
- A sign language interpreter
- Assistive technology, such as video remote interpreting service, a hearing aid-compatible telephone headset, appropriate emergency notification systems (e.g., strobe lighting on fire alarms or vibrating pagers), enabling streaming of sound directly from a device to a hearing aid or implant, using closed captioning, a voice carry-over telephone, assistive software or applications, assistive listening devices, communication access real-time translation (“CART”) services (e.g., real-time captioning), and augmentative communication devices that allow users to communicate orally by typing words that are then translated.
There are no “magic words” for requesting a reasonable accommodation. Rather, the employer is on notice once the employee, or a designated third party, communicates that a change is needed because of an impairment. An employee may be entitled to more than one reasonable accommodation.
The employer should not assume that a reasonable accommodation is cost-prohibitive or would be otherwise unduly burdensome. It is important to engage in the interactive process with the applicant or employee to determine a truly effective accommodation.
Engaging in the interactive process will make the recruitment stage and the workplace better for all involved parties, both the employee and the employer. It clarifies needs, expectations, and obligations and also builds trust. Doing so also helps create a truly inclusive workplace, which is ultimately the goal of the ADA.