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

CONCERNS ABOUT SAFETY

When it comes to safety concerns, an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing impairments. Instead, the employer should evaluate each individual on her skills, knowledge, experience, and how the hearing disability affects her.

15.  When may an employer refuse to hire, terminate, or temporarily restrict the duties of a person who has or had a hearing impairment because of safety concerns?

An employer only may exclude an individual with a hearing impairment from a job for safety reasons when the individual poses a direct threat. A "direct threat" is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.[29] This determination must be based on objective, factual evidence, including the best recent medical evidence.

In making a direct threat assessment, the employer must evaluate the individual's present ability to safely perform the job. The employer also must consider:

(1)   the duration of the risk;

(2)   the nature and severity of the potential harm;

(3)    the likelihood that the potential harm will occur; and

(4)   the imminence of the potential harm.[30]

The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.[31]

Example 23: A school district denies an applicant with a hearing disability a job as a school bus driver for elementary school students, believing that she will not be able to drive safely and will not be able to monitor students, especially in the event of a medical or other emergency. The applicant has a clean driving record and has previously performed jobs transporting elderly patients by van to doctor's appointments and social events. Based on past experiences with accommodations, the applicant could monitor students effectively - and without compromising her driving - if an additional mirror highlighting the rear of the bus were installed. The mirror, placed above the driver, would allow her to better monitor students whose conversations she may not be able to hear or understand as well as those students located in the front of the bus. Under these circumstances, the school district cannot demonstrate that this applicant would pose a direct threat to the safety of others, and its refusal to hire her would violate the ADA.[32]

Example 24: An employee with a hearing disability requests training to operate a forklift machine at a large hardware store. For safety reasons, the employer requires that forklift operators be able to communicate with a spotter employee while operating the machine. The employee suggests that he wear a vibrating bracelet to allow him to communicate with the spotter. The employer has attempted to use vibrating bracelets in the past without success because users cannot distinguish the vibrations between the forklift and the bracelet. The employee tries to use the vibrating bracelet, but experiences the same problem. Assuming no other accommodations are available, the employer may deny the employee training on a forklift.[33]

[29] 29 C.F.R. § 1630.2(r).

16.  What should an employer do when another federal law prohibits it from hiring anyone with a hearing impairment?

If a federal law prohibits an employer from hiring a person with a hearing impairment, the employer is not liable under the ADA. The employer should be certain, however, that compliance with the law actually is required, not voluntary. The employer also should be sure that the law does not contain any exceptions or waivers.

Example 25: Terry has a severe hearing impairment that is slightly improved by her cochlear implant. She applies for a position driving large trucks. These positions are subject to hearing requirements and other standards enforced by the Department of Transportation (DOT). The employer may rely on DOT's hearing requirement in denying Terry employment. However, the employer may not rely on the DOT hearing requirement to exclude Terry from a position driving smaller trucks which are not subject to DOT's standards. Instead, the employer would have to establish that Terry would pose a direct threat, within the meaning of the ADA, if it denied her a position driving smaller trucks because of her hearing disability.