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For job applicants and current employees who have disabilities, the Americans with Disabilities Act of 1990 (ADA) has been the primary law for protecting their rights. These include protections against retaliation, interference and discrimination, as well as access to reasonable accommodations at work.
While the basic premise of the ADA is fairly straightforward, implementing its provisions can sometimes be confusing, even for the most well-intentioned employers. Misunderstandings and assumptions about individuals can lead to unintended ADA violations and employers losing out on having quality employees.
These problems can take place more often when the disability isn’t obvious or the individual with the disability carries out daily activities without any apparent difficulty. A notable example is individuals who are hard of hearing, deaf or have other conditions that affect their hearing.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued updated guidance on how employers should handle hearing-based disabilities at work. This guidance technically doesn’t have the force of law, but it reflects the EEOC’s interpretation of the law. Courts may also use this guidance as persuasive authority when deciding cases involving ADA compliance issues.
To better understand what this guidance says and how it helps individuals with hearing disabilities, let’s have a quick review of the ADA.
When Do the ADA’s Disability Protections Apply?
The ADA applies to most private employers with 15 or more employees, in addition to local and state government employees. Federal employees receive similar protections through Section 501 of the Rehabilitation Act of 1973.
The ADA’s definition of disability is fairly broad, with several ways for an individual to receive ADA protections. The most common definition of a disability refers to a physical or mental impairment that substantially limits a major life activity. In many cases, trouble hearing will constitute a substantial limitation of a major life activity.
The EEOC’s Updated ADA Guidance on Workplace Hearing Disabilities
This updated guidance from the EEOC can be divided into several sections, including:
- General information about hearing conditions.
- When and how an employer can obtain, use and share medical information relating to the hearing disability.
- The employer’s obligation to protect confidential medical information.
- Accommodating employees with ADA-recognized hearing disabilities.
- How employers can handle their concerns about workplace safety.
- Harassment, retaliation and interference.
- How to file a charge of employment discrimination based on a disability.
The guidance covers these topics in a question-and-answer format. There are also plenty of examples that reflect the modern workplace. I encourage you to take a look at the guidance, but below are a few notable key points from the guidance that are worth highlighting.
Key Point #1: When Employers Can Ask for Information About a Hearing Disability
The first key point deals with an employer asking questions about a hearing disability either just before or just after a job offer is made. Before making a job offer, the employer for the most part cannot ask the job applicant questions about their medical issues, such as hearing problems.
This is true even if the employer is motivated by work-related concerns. However, the employer may ask questions about the job applicant’s ability to do the job they’re applying for.
For example, if the employer sees that the applicant for a call center job wears a hearing aid in both ears, they can’t ask the applicant why they need hearing aids. But they can explain that the job entails using a headset connected to a phone and ask if the applicant can interact with customers in this manner.
Once a job offer is made, then the employer has more room to ask for more information about the applicant’s hearing disability. This includes asking the applicant to provide information relating to their medical history and complete a medical exam. The employer needs to make sure that these questions and exam requirements are equally applied to other individuals who receive job offers.
This may seem confusing, but when looking at the big picture, it makes sense. The EEOC doesn’t want employers asking for detailed medical information until the employer has already decided to hire someone.
Too often, an employer’s bias will affect the decision on who to hire. So the EEOC tries to balance the employer’s need for confirming someone with a disability can do the job and a job applicant not having to worry about their disability skewing the employer’s decision on whether to hire them.
Key Point #2: Protecting Disability-Related Information
If an employer provides a reasonable accommodation to an employee with a disability, the employer may not tell the employee’s coworkers that the accommodation is required by the ADA. This is because it indicates that the employee receiving the accommodation has a disability.
To avoid situations where a fellow employee might question the use of an accommodation, the employer can be proactive by training its staff about the ADA and its requirements, including providing reasonable accommodations.
An employer may share the fact that an employee has a hearing disability in limited circumstances. For instance, a manager oversees the implementation of a reasonable accommodation of one of their subordinates.
Key Point #3: Requesting a Reasonable Accommodation
There are no “magic words” for requesting a reasonable accommodation. The employee asking for an accommodation must only inform the employer of the need for an accommodation because of a disability. This puts the employer on notice that an accommodation may be needed.
Even though the accommodation process begins with a basic request, the employer is within its rights to ask for additional information. They can use this information to decide whether an accommodation is warranted and if so, what kind of accommodation they must provide. This means that getting a reasonable accommodation is an interactive process, with the employer and employee having a good-faith discussion and sharing information about what is needed and why.
Key Point #4: Technology Has Made it Easier to Accommodate Hearing Disabilities
The EEOC guidance doesn’t directly make this point, but its examples make it clear that the ubiquity of high-speed Internet, smartphones and advancements in electronics mean it’s easier for employers to provide reasonable accommodations to their employees with hearing disabilities. What might have been cost-prohibitive 20 years ago is now easily affordable.
A good example of this is the American Sign Language (ASL) interpreter. If, for example, an employee needed an ASL interpreter as an accommodation for a weekly staff meeting, it might have required an employer to hire the ASL interpreter who had to travel and be present in the office each week. Depending on the resources of the employer, this could pose an undue hardship.
Today, video conferencing software is more readily available. Therefore, the employer likely has the option of having the ASL interpreter provide their services remotely. This could lower costs so that it’s no longer an undue burden.
Bottom Line
This guidance doesn’t create a new law or substantive legal right. Yet it reflects the changes in today’s workplace and clarifies what an employer should or shouldn’t do. This means job applicants and employees with hearing issues should have an easier time understanding their rights and employers will be a little bit less confused about what the ADA requires of them.
