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

ACCOMMODATING EMPLOYEES WITH HEARING DISABILITIES

The ADA requires employers to provide adjustments or modifications - called reasonable accommodations - to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability. Not all employees with a hearing disability will need an accommodation or require the same accommodations. 

9. What type of reasonable accommodations may employees with hearing disabilities need?

Some employees may need one or more of the following accommodations:

• a sign language interpreter

  Example 7: Simon has a hearing disability and works as a project manager for a regional telephone company. Simon is usually able to use his lip reading ability to communicate individually with his co-workers. However, Simon occasionally requests a sign language interpreter for large-group conferences and meetings, because it is not possible for him to use lip-reading when people who are not in his line of sight are speaking. Simon's employer would have to provide the sign language interpreter as a reasonable accommodation, absent undue hardship. (For more information about "undue hardship," see Question 12, below.)

• assistive technology, including:

  • a TTY, text telephone, voice carry-over telephone, or captioned telephone[23]

  • a video relay service

  • a telephone headset

  • appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers)

  • assistive computer software (for example, net meetings, voice recognition software)

    Example 8: Allen, who has a hearing disability, works as an information technology (IT) specialist with a small, Internet-advertising firm. The IT specialist position requires frequent one-on-one meetings with the firm's president. Because it will not cause an undue hardship, the firm accommodates Allen by acquiring voice recognition software for him to use in his meetings with the president. The software is programmed to translate the president's spoken word into written electronic text.

  • assistive listening devices (ALDs)

    Example 9: An employer has an annual all-employee meeting for more than 200 employees. Thelma, who has a severe hearing impairment, requests the use of an ALD in the form of a personal FM system. Speakers would wear small microphones that would transmit amplified sounds directly to a receiver in Thelma's ear. The employer determines that an ALD is a reasonable accommodation that will allow Thelma to participate in the meeting without causing an undue hardship.

  • augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice

  • communication access real-time translation (CART), which translates voice into text at real-time speeds

    Example 10: Kendall works as an associate for an international consulting firm. Kendall has a hearing disability for which he uses a hearing aid and lip reading. His company sometimes conducts video-conferencing meetings with clients in other countries. During these meetings, Kendall finds it difficult to participate because some of the clients speak with foreign accents and the video feedback is not continuous. Kendall requests the use of remote CART services to accommodate his hearing disability during international client meetings. The requested accommodation would translate the client's spoken word on Kendall's notebook computer monitor at an almost real-time speed. This accommodation would allow Kendall to participate fully in the meetings and should be provided, absent undue hardship.

• appropriate written memos and notes (especially used for brief, simple, or routine communications)

• work area adjustments (for example, a desk away from a noisy area or near an emergency alarm with strobe lighting)

  Example 11: Ann works as an accountant in a large firm located in a high-rise building in the city. Ann has a large window in her office that faces the street-side of the building. She wears a hearing aid to mitigate her severe hearing impairment. Throughout the workday many exterior noises (for example, police sirens, car horns, and street musicians) are amplified by Ann's hearing aid and interfere with her ability to hear people speaking in her office. Ann requests, and her employer agrees, that moving her to a vacant interior office is a reasonable accommodation without causing an undue hardship.

• time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable.[24]

  Example 12: Beth is deaf and requests leave as a reasonable accommodation to train a new hearing dog. Hearing dogs assist deaf and hard of hearing individuals by alerting them to a variety of household and workplace sounds such as a telephone ring, door knock or doorbell, alarm clock, buzzer, name call, speaker announcement, and smoke or fire alarm. A hearing dog is trained to make physical contact and direct a person to the source of the sound. Under her employer's leave policy, Beth does not have enough annual or sick leave to cover her requested absence. The employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship.

• altering an employee's marginal (i.e., non-essential) job functions

  Example 13: Maria, a librarian, is primarily responsible for cataloguing books, writing book summaries, and scheduling book tours. Recently, Maria has had to fill in as a desk librarian since the regular librarian is on vacation. Maria has a severe hearing disability and uses a hearing aid. She finds it difficult to hear patrons if there is any background noise. She asks to switch her front desk duties with another librarian who processes book orders transmitted over the phone or Internet. Since working at the front desk is a minor function of Maria's job, the employer should accommodate the change in job duties, absent undue hardship.

• reassignment to a vacant position

  Example 14: Sonny, a stocking clerk on the floor of a large grocery store, develops Ménière's disease, which produces a loud roaring noise in his ears for long periods of time. It is difficult for him to hear customers and co-workers on the floor because of music and frequent announcements played over the store's public address system and background noise in the store, particularly during busy periods. The store manager tried several unsuccessful accommodations. Upon request, the employer should reassign the employee to a vacant position as a stocking clerk in the warehouse at the same location, absent undue hardship. The employee is qualified for the reassignment position and the warehouse is a quieter environment with fewer background sounds.

• other modifications or adjustments that allow a qualified applicant or employee with a hearing disability to enjoy equal employment opportunities

  Example 15: Manny is hired as a chemist for a pharmaceutical company. He has a hearing disability and communicates primarily through sign language and lip reading. Shortly after he is hired, he is required to attend a two-hour orientation meeting. The meeting includes a brief lecture session followed by a series of video vignettes to illustrate key concepts. To accommodate his hearing disability, Manny requests a seat near the trainer, closed captioning during the video segments, and adequate lighting to allow him to read lips throughout the meeting. Since there is no undue hardship, the employer grants these reasonable accommodations to allow Manny to participate fully during the orientation session.

Although these are some examples of the types of accommodations commonly requested by employees with hearing disabilities, other employees may need different changes or adjustments.[25]  Employers should ask the particular employee requesting an accommodation what he needs that will help him do his job. There also are extensive public and private resources to help employers identify reasonable accommodations. For example, the website for the Job Accommodation Network (JAN) (http://askjan.org/) provides information about many types of accommodations for employees with hearing disabilities.

[23] A text telephone or teletypewriter (TTY) allows a telephone user to send typed messages to another caller and to receive typewritten messages from the caller either directly (if the caller is also using a TTY) or through a telephone relay service (TRS) operator. A voice carry-over telephone allows someone with a hearing impairment to communicate orally over the telephone and to receive text communications from the other caller that are transcribed by a TRS operator. A captioned telephone allows users with hearing impairments to receive communications over the telephone orally while receiving an almost simultaneous text translation.

10. How does an employee with a hearing disability request a reasonable accommodation?

There are no "magic words" that a person has to use when requesting a reasonable accommodation. A person simply has to tell the employer that she needs an adjustment or change at work because of her hearing impairment. A request for reasonable accommodation also can come from a family member, friend, health professional, or other representative on behalf of a person with a hearing disability. If an employer requires more information about the disability and why an accommodation is needed, it should engage in an "interactive process" -- a dialogue with the employee -- to obtain information that will help the employer in handling the request.

Example 16: Lionel has a hearing disability and is employed as an electrician. As a team leader, Lionel is responsible for receiving his team's list of daily work sites and any accompanying special instructions, traveling to the sites with his team, and directing the day's work at each site. Lionel receives the list of assignments and accompanying special instructions from the company owner during daily morning meetings attended by all of the team leaders. The special instructions are given orally. One morning, at the conclusion of a team leader meeting, Lionel passes a note to the owner reminding him of his hearing impairment and requesting that all special instructions for the team's assignments be written down because he is having difficulty hearing them. Lionel has requested a reasonable accommodation.

11.  May an employer request documentation when an employee who has a hearing disability requests a reasonable accommodation?

Sometimes. When a person's hearing impairment is not obvious, the employer may ask the person to provide reasonable documentation about how the condition limits major life activities (that is, whether the person has a disability) and why a reasonable accommodation is needed. An employer, however, is entitled only to documentation sufficient to establish that the employee has a hearing disability and to explain why an accommodation is needed. A request for an employee's entire medical record, for example, would be inappropriate, as it likely would include information about conditions other than the employee's hearing disability.[26]

Example 17: Luíz, who has a hearing disability and communicates primarily through lip reading and speech, works as a programmer for an Internet security firm. The firm acquires a new client and promotes Luíz to be the senior programmer responsible for all consultations regarding the Internet security system design for the new client. Luíz's new assignment requires frequent phone conversations and teleconference meetings that do not allow for the use of Luíz's lip reading skills to aid in his verbal comprehension. As a result, Luíz's audiologist recommends, and Luiz requests, the use of a voice carry-over phone, which would provide an almost real-time text relay of the client's speech and also allow the client to hear Luíz. Because Luiz's hearing impairment is not an obvious disability, his employer may lawfully request medical documentation to verify his disability.

[26] Requests for documentation to support a request for accommodation may violate Title II of the Genetic Information Nondiscrimination Act (GINA) where they are likely to result in the acquisition of genetic information, including family medical history.  29 C.F.R. §1635.8(a).  For this reason, employers may want to include a warning in the request for documentation that the employee or the employee's doctor should not provide genetic information.  Id. at 1635.8(b)(1)(i)(B).

12. Does an employer have to grant every request for a reasonable accommodation?

No. An employer does not have to provide an accommodation if doing so would be an undue hardship. Undue hardship means that providing the reasonable accommodation will result in significant difficulty or expense. An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property). Nor do employers have to provide employees with personal use items, such as hearing aids or other devices that are used both on and off the job.

If more than one accommodation would be effective, the employee's preference should be given primary consideration, although the employer is not required to provide the employee's first choice of reasonable accommodation. If a requested accommodation is too difficult or expensive, an employer may choose to provide an easier or less costly accommodation as long as it is effective in meeting the employee's needs.

Example 18: An employee with a bilateral hearing disability requests use of communication access real-time translation (CART) for an upcoming training. In place of the CART device, the employer suggests an assistive listening device (ALD) because it is less expensive than CART. Twelve managers and supervisors are scheduled to take the training in a conference room at the employer's offices. Much of the information will be presented in a lecture format, accompanied by slides with printed information. The size of the room, the number of participants in the training, and the format of the training make it possible for the employee to use a portable assistive listening system effectively. The employer may, therefore, provide an ALD instead of CART under these circumstances.

Example 19: A deaf employee requests a sign language interpreter for regular staff meetings. The employer suggests that a co-worker could take notes and share them with the deaf employee or that a summary of the meeting could be prepared. These alternatives are not effective because they do not allow the deaf employee to ask questions and participate in discussions during the meetings as other employees do. Absent undue hardship, the employer must provide a sign language interpreter for the meetings.

13.  May an employer be required to provide more than one accommodation for the same employee with a hearing disability?

Yes. The duty to provide a reasonable accommodation is an ongoing one. Although some employees with hearing disabilities may require only one reasonable accommodation, others may need more than one. An employer must consider each request for a reasonable accommodation and determine whether it would be effective and whether providing it would pose an undue hardship.

Example 20: A deaf employee can communicate effectively with her supervisor by lip-reading and with written notes. The employee wants to attend a three-day training program that will involve extensive communication between participants and the instructor and among participants themselves. The employee requests CART - communication access real-time translation - for the training. The employer may explore whether another form of reasonable accommodation - for example, a sign language interpreter - would be effective. But, the employer must provide the CART service or another effective form of reasonable accommodation, absent undue hardship, since lip-reading and exchanging occasional notes will not enable the employee to participate fully in the training.

14. What kinds of reasonable accommodations are related to the benefits and privileges of employment?

Reasonable accommodations related to the benefits and privileges of employment include accommodations that are necessary to provide individuals with disabilities access to facilities or portions of facilities to which all employees are granted access (for example, employee break rooms and cafeterias), access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.

Example 21: Karin, who is deaf, works as an associate in a large investment firm. Every December, the partner in charge of the team for which Karin works holds a party at his residence for all of the team's members and a number of the firm's clients. Upon Karin's request, her employer provides her a sign language interpreter to allow Karin to fully participate in the social event.

An employer will not be excused from providing an employee with a hearing disability with a necessary accommodation because the employer has contracted with another entity to conduct the event.

Example 22: An employer offers its employees a training course on organization and time management provided by a local company with which the employer has contracted. An employee who is deaf wants to take the course and asks for CART services or a sign language interpreter. The employer claims that the company conducting the training is responsible for providing what the deaf employee needs, but the company responds that the responsibility is the employer's. Even if the company conducting the training has an obligation, under Title III of the ADA,[27] to provide "auxiliary aids and services," which would include CART services and sign language interpreters, this fact does not alter the employer's obligation to provide the employee with a reasonable accommodation for the training.[28]

[27] In an effort to eliminate discrimination against individuals with disabilities, Title III of the Americans with Disabilities Act requires businesses and non-profit organizations that are public accommodations to comply with basic nondiscrimination and building accessibility requirements, provide reasonable modifications to policies and practices, and supply auxiliary aids (for example, assistive listening devices, note takers, written materials, taped texts, and qualified readers) to ensure effective communication with persons with disabilities. For more information on the requirements of Title III of the ADA, visit the website for the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, available at http://www.justice.gov/crt/about/drs/.