Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act

2. May an employer ask a job applicant whether he has or had a hearing impairment or about his treatment related to any hearing impairment prior to making a job offer? 

No. An employer may not ask questions about an applicant's medical condition[19] or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot legally ask an applicant such questions as:

• whether she has ever had any medical procedures related to her hearing (for example, whether the applicant has a cochlear implant);

• whether she uses a hearing aid; or

• whether she has any condition that may have caused hearing impairment.

Of course, an employer may ask questions pertaining to the applicant's ability to perform the essential functions of the position, with or without reasonable accommodation, such as:

• whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment

• whether the applicant has good communication skills

• whether the applicant can meet legally mandated safety standards required to perform a job.

[19] Federal contractors are required under 41 C.F.R. § 60-741.42, a regulation issued by the Office of Federal Contract Compliance Programs (OFCCP), to invite applicants to voluntarily self-identify as persons with disabilities for affirmative action purposes. The ADA prohibition on asking applicants about medical conditions at the pre-offer stage does not prevent federal contractors from complying with the OFCCP's regulation. See Letter from Peggy R. Mastroianni, EEOC Legal Counsel, to Patricia A. Shiu, Director of OFCCP, www.dol.gov/ofccp/regs/compliance/section503.htm#bottom.