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

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

INTRODUCTION

The Americans with Disabilities Act (ADA), which was amended by the Americans with Disabilities Act Amendments Act of 2008 ("Amendments Act" or "ADAAA"), is a federal law that prohibits discrimination against qualified individuals with disabilities. Individuals with disabilities include those who have impairments that substantially limit a major life activity, have a record (or history) of a substantially limiting impairment, or are regarded as having a disability.[1]

Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Section 501 of the Rehabilitation Act provides similar protections related to federal employment. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and may provide protections in addition to those available under the ADA.[2]

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. This document, which is one of a series of question-and-answer documents addressing particular disabilities in the workplace,[3] explains how the ADA applies to job applicants and employees with hearing impairments. In particular, this document explains:

• when an employer may ask an applicant or employee questions about his hearing impairment and how it should treat voluntary disclosures;

• what types of reasonable accommodations employees with hearing disabilities may need;

• how an employer should handle safety concerns about applicants and employees with hearing disabilities; and

• how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

[1] See 42 U.S.C. §12102(2); 29 C.F.R. §1630.2(g).

GENERAL INFORMATION ABOUT HEARING IMPAIRMENTS

In 2011, a study led by researchers from Johns Hopkins reported that nearly 20% of Americans 12 and older have hearing loss so severe that it may make communication difficult.[4] The study also found that 30 million Americans (12.7% of the population) had hearing loss in both ears while 48 million Americans (20.3% of the population) had hearing loss in one ear.[5] According to 2010 data from the National Institute on Deafness and Other Communication Disorders (NIDCD), approximately 17% of American adults (36 million people) report some degree of hearing loss.[6] Of this group, 18% of American adults between the ages of 45 and 64 have experienced some degree of hearing loss.[7] NIDCD estimates that approximately 15% of Americans between the ages of 20 and 69 (26 million people) have high frequency hearing loss due to exposure to loud sounds or noise at work or in leisure activities.[8]

The Centers for Disease Control and Prevention (CDC) refer to hearing impairments as conditions that affect the frequency and/or intensity of one's hearing.[9] Although the term "deaf" is often mistakenly used to refer to all individuals with hearing difficulties, it actually describes a more limited group. According to the CDC, "deaf" individuals do not hear well enough to rely on their hearing to process speech and language. Individuals with mild to moderate hearing impairments may be "hard of hearing," but are not "deaf." These individuals differ from deaf individuals in that they use their hearing to assist in communication with others.[10] As discussed below, people who are deaf and those who are hard of hearing can be individuals with disabilities within the meaning of the ADA.

A hearing impairment can be caused by many physical conditions (for example, childhood illnesses, pregnancy-related illnesses, injury, heredity, age, excessive or prolonged exposure to noise), and result in varying degrees of hearing loss.[11] Generally, hearing impairments are categorized as mild, moderate, severe, or profound.[12] An individual with a moderate hearing impairment may be able to hear sound, but have difficulty distinguishing specific speech patterns in a conversation. Individuals with a profound hearing impairment may not be able to hear sounds at all. Hearing impairments that occur in both ears are described as "bilateral," and those that occur in one ear are referred to as "unilateral."[13]

The many different circumstances under which individuals develop hearing impairments can affect the way they experience sound, communicate with others, and view their hearing impairments.[14] For example, some individuals who develop hearing losses later in life find it difficult both to adjust to a world with limited sound, and to adopt new behaviors that compensate for their hearing loss. As a result, they may not use American Sign Language (ASL) or other communication methods at all, or as proficiently as individuals who experienced hearing loss at birth or at a very young age.

Individuals with hearing impairments can perform successfully on the job and should not be denied opportunities because of stereotypical assumptions about hearing loss. Some employers assume incorrectly that workers with hearing impairments will cause safety hazards, increase employment costs, or have difficulty communicating in fast-paced environments. In reality, with or without reasonable accommodation, individuals with hearing impairments can be effective and safe workers. (For information on Reasonable Accommodation, see Questions 9 - 14, below.)

[4] See www.hopkinsmedicine.org/news/media/releases/one_in_five_americans_has_hearing_loss.

1. When does someone with a hearing impairment have a disability within the meaning of the ADA?      

As a result of changes made by the ADAAA, people who are deaf should easily be found to have a disability within the meaning of the first part of the ADA's definition of disability because they are substantially limited in the major life activity of hearing.[15] Individuals with a hearing impairment other than deafness will meet the first part of the ADA's definition of disability if they can show that they are substantially limited in hearing or another major life activity (e.g., the major bodily function of special sense organs).[16] A determination of disability must ignore the positive effects of any mitigating measure that is used. For example, a mitigating measure may include the use of a hearing aid or cochlear implant.[17]

Individuals with a history of a hearing impairment will be covered under the second part of the definition of disability if they have a record of an impairment that substantially limited a major life activity in the past.[18] Although this definition of disability does not apply frequently to individuals with hearing impairments, examples of when it might apply would include situations in which someone's hearing has been corrected surgically (not including surgery to put in a cochlear implant, a mitigating measure). Finally, an individual is covered under the third ("regarded as") prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a hearing impairment or because the employer believes the individual has a hearing impairment, other than an impairment that lasts fewer than six months and is minor.

[14] National Association of the Deaf, The Difference between Deaf and Hard of Hearing, http://www.nad.org/site.

OBTAINING, USING, AND DISCLOSING MEDICAL INFORMATION

Title I of the ADA limits an employer's ability to ask questions related to hearing and other disabilities and to conduct medical examinations at three stages: pre-offer, post-offer, and during employment.

Job Applicants

Before an Offer of Employment Is Made

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.   

3. Does the ADA require an applicant to disclose that she has or had a hearing impairment or some other disability before accepting a job offer?

No.  The ADA does not require applicants to disclose that they have or had a hearing impairment or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter). Some individuals with a hearing impairment, however, choose to disclose or discuss their condition to dispel myths about hearing loss or to ensure that employers do not assume that the impairment means the person is unable to do the job.

Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job (for example, specialized equipment, removal of a marginal function, or another type of job restructuring). A person with a hearing impairment, however, may request an accommodation after becoming an employee even if she did not do so when applying for the job or after receiving the job offer.

4. May an employer ask questions about an obvious hearing impairment, or ask follow-up questions if an applicant discloses a non-obvious hearing impairment?

No. An employer generally may not ask an applicant about obvious impairments. Nor may an employer ask an applicant who has voluntarily disclosed that he has a hearing impairment any questions about the nature of the impairment, when it began, or how the individual copes with the impairment. However, if an applicant has an obvious impairment or has voluntarily disclosed the existence of a hearing impairment and the employer reasonably believes that he will require an accommodation to perform the job because of the impairment, the employer may ask whether the applicant will need an accommodation and what type. The employer must keep any information an applicant discloses about his medical condition confidential. (See "Keeping Medical Information Confidential.")

Example 1: Julie has a severe hearing impairment in her right ear and is applying to the telephone sales department of a large clothing company. Julie tells the employer of her hearing impairment during the interview. The employer's sales associates currently wear headsets with earpieces for the right ear. The employer may ask Julie during her interview if she would need a left-sided headset as an accommodation.

After an Offer of Employment Is Made

After making a job offer, an employer may ask questions about the applicant's health (including questions about the applicant's disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination). After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information. For example, if an employer asks all applicants post-offer about their general physical and mental health, it can ask individuals who disclose a particular illness, disease, or impairment for medical information or require them to have a medical examination related to the condition disclosed.

5. What may an employer do when it learns that an applicant has or had a hearing impairment after she has been offered a job but before she starts working?

When an applicant discloses after receiving a conditional job offer that she has or had a hearing impairment, an employer may ask the applicant additional questions, such as how long she has had the hearing impairment; what, if any, hearing the applicant has; what specific hearing limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job. The employer also may send the applicant for a follow-up hearing or medical examination or ask her to submit documentation from her doctor answering questions specifically designed to assess her ability to perform the job's functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage when an employer may only ask an applicant who voluntarily discloses a disability or whose disability is obvious whether she needs an accommodation to perform the job and what type.

An employer may not withdraw an offer from an applicant with a hearing impairment if the applicant is able to perform the essential functions of a job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of himself or others that cannot be eliminated or reduced through reasonable accommodation. ("Reasonable accommodation" is discussed in Questions 9 through 14.  "Direct threat" is discussed in Question 15.)

Example 2: Lydia applies for a position as an aircraft mechanic. After receiving a job offer, she is given a physical examination. The examination reveals that she has a slight hearing loss in her left ear. Although Lydia worked as an aircraft mechanic in noisy environment with the same level of hearing while she was a member of the military, the employer is concerned that Lydia will pose a risk to herself or others because she will not be able to hear sounds that might alert her to dangers in the work area such as the presence of moving aircraft or other moving vehicles. The employer may not withdraw the job offer simply because it believes Lydia cannot work safely in a high-noise environment. It must determine whether Lydia's hearing impairment would result in a direct threat (that is, a significant risk of substantial harm to Lydia or to others in the workplace).  The employer may obtain additional information about Lydia's hearing impairment, including how her hearing impairment affected her past work experience, to make this determination.

Employees

The ADA strictly limits the circumstances under which an employer may ask questions about an employee's medical condition or require the employee to have a medical examination. Once an employee is on the job, his actual performance is the best measure of ability to do the job.

6. When may an employer ask an employee if a hearing impairment, or some other medical condition, may be causing her performance problems?

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee's medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as difficulties hearing, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer's existing policies concerning performance.[20]

Example 3: Rupa wears a hearing aid to improve her bilateral, moderate hearing impairment. She was recently promoted from an administrative position to sales associate for a cable company. The new position requires significantly more time on the phone interacting with customers. Although Rupa has received excellent reviews in the past, her latest review was unsatisfactory citing many mistakes in the customer orders she records over the phone. The employer may lawfully ask Rupa if she has any difficulty hearing customers and, if so, whether she would benefit from an accommodation. A possible accommodation could be a captioned telephone that would allow Rupa to communicate verbally while receiving an almost real-time text relay of the conversation.

Example 4: An employee with a profound hearing impairment has received below average evaluations for six months. The employee's poor performance began when she was not selected for a vacant supervisory position. Moreover, the kinds of performance problems the employee is having - a significant increase in the number of late arrivals and typographical errors in written reports the employee routinely produces - cannot reasonably be attributed to a problem with the employee's hearing. The employer may not ask for medical information about the employee's hearing impairment, but instead should counsel the employee about the performance problems or otherwise proceed as appropriate in accordance with its policies applicable to employee performance.

[20] An employer also may ask an employee about his hearing impairment or send the employee for a medical examination when it reasonably believes the employee may pose a direct threat because of his impairment.  See "Concerns About Safety."

7. Are there any other instances when an employer may ask an employee with a hearing impairment about her condition?

Yes. An employer also may ask an employee about a hearing impairment when it has a reasonable belief that the employee will be unable to safely perform the essential functions of her job because of the hearing impairment. In addition, an employer may ask an employee about her hearing impairment to the extent the information is necessary:

• to support the employee's request for a reasonable accommodation needed because of her hearing impairment;

• to verify the employee's use of sick leave related to her hearing impairment  if the employer requires all employees to submit a doctor's note to justify their use of sick leave;[21] or

• to enable the employee to participate in a voluntary wellness program.[22]

Example 5: An employer maintains a leave policy requiring all employees who use sick leave for a medical appointment to submit a doctor's note upon returning to work. Mark, an employee, uses sick leave to attend an audiologist appointment to adjust his hearing aids. In accordance with its policy, the employer can require Mark to submit a doctor's note for his absence; however, it may not require the note to include any information beyond that which is needed to verify that Mark used his sick leave properly (such as, the degree of Mark's hearing loss, the strength of his hearing aids, or the results of the adjustment).

[21] An employer also may ask an employee for periodic updates on her condition if the employee has taken leave and has not provided an exact or fairly specific date of return or has requested leave in addition to that already granted.  Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health without violating the ADA.

KEEPING MEDICAL INFORMATION CONFIDENTIAL

With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose that an employee has a hearing impairment:

• to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee's work restrictions;

• to first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work;

• to individuals investigating compliance with the ADA and similar state and local laws; and

• where needed for workers' compensation or insurance purposes (for example, to process a claim).

8. May an employer tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as working at home or working a modified schedule) that she is receiving a reasonable accommodation?

No. Telling coworkers that an employee is receiving a reasonable accommodation amounts to a disclosure that the employee has a disability. Rather than disclosing that the employee is receiving a reasonable accommodation, the employer should focus on the importance of maintaining the privacy of all employees and emphasize that its policy is to refrain from discussing the work situation of any employee with co-workers. Employers may be able to avoid many of these kinds of questions by training all employees on the requirements of equal employment laws, including the ADA.

Additionally, an employer will benefit from providing information about reasonable accommodation to all of its employees. This can be done in a number of ways, such as through written reasonable accommodation procedures, employee handbooks, staff meetings, and periodic training. This kind of proactive approach may lead to fewer questions from employees who misperceive co-worker accommodations as "special treatment."

Example 6: A large store does not provide its sales employees with smartphones. However, the employer does provide a deaf employee with one, as a reasonable accommodation, so that he can receive text messages instead of the numerous communications made over the public address system that he cannot hear, such as requests for sales representatives to report to different parts of the store to assist customers.  If other employees ask why he has a smartphone and they do not, the employer may not divulge any information about the impairment, including the fact that the smartphone is a reasonable accommodation.

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/.

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.

HARASSMENT

The ADA prohibits harassment, or offensive conduct, based on disability just as other federal laws prohibit harassment based on race, sex, color, national origin, religion, age, and genetic information. Offensive conduct may include, but is not limited to, offensive jokes, slur, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Example 26: Leonard works as a stocker at a local electronics store. Leonard lost his hearing two years ago as the result of a rare and debilitating illness. Since Leonard's recovery and return to work, his co-workers have constantly taunted him about his hearing impairment and recklessly driven the forklift near him while yelling for him to move. The employees know that Leonard cannot hear their warnings and often laugh at Leonard's startled reaction when he sees the forklift approaching him. Leonard complains to his supervisor in accordance with his employer's anti-harassment policy. The employer must promptly investigate and address the harassing behavior.

17.  What should employers do to prevent and correct harassment?

Employers should make clear that they will not tolerate harassment based on disability or on any other basis. This can be done in a number of ways, such as through a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager. Finally, the employer should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action. For more information on the standards governing harassment under all of the EEO laws, see http://www.eeoc.gov/policy/docs/harassment.html.

RETALIATION

The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an investigation, proceeding, or litigation related to a charge of employment discrimination. It is also unlawful for an employer to retaliate against someone for requesting a reasonable accommodation.  Persons who believe that they have been retaliated against may file a charge of retaliation as described below.

HOW TO FILE A CHARGE OF EMPLOYMENT DISCRIMINATION

Against Private Employers and State/Local Governments

Any person who believes that his or her employment rights have been violated on the basis of disability and wants to make a claim against an employer must file a charge of discrimination with the EEOC. A third party may also file a charge on behalf of another person who believes he or she experienced discrimination. For example, a family member, social worker, or other representative can file a charge on behalf of someone with a hearing impairment. The charge must be filed by mail or in person with the local EEOC office within 180 days from the date of the alleged violation. The 180-day filing deadline is extended to 300 days if a state or local anti-discrimination agency has the authority to grant or seek relief as to the challenged unlawful employment practice.[34]

The EEOC will send the parties a copy of the charge and may ask for responses and supporting information. Before formal investigation, the EEOC may select the charge for EEOC's mediation program. Both parties have to agree to mediation, which may prevent a time consuming investigation of the charge. Participation in mediation is free, voluntary, and confidential.

If the mediation is unsuccessful, the EEOC investigates the charge to determine if there is "reasonable cause" to believe discrimination has occurred. If reasonable cause is found, the EEOC will then try to resolve the charge with the employer. In some cases, where the charge cannot be resolved, the EEOC will file a court action. If the EEOC finds no discrimination, or if an attempt to resolve the charge fails and the EEOC decides not to file suit, it will issue a notice of a "right to sue," which gives the charging party 90 days to file a court action. A charging party can also request a notice of a "right to sue" from the EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving the notice. For a detailed description of the process, you can visit our website at http://www.eeoc.gov/employees/charge.cfm.

Against the Federal Government

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency's EEO Office. You can contact an EEO Counselor by calling the office responsible for the agency's EEO complaints program. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or though ADR, you can file a formal discrimination complaint against the agency with the agency's EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late). If the agency doesn't dismiss the complaint, it will conduct an investigation.  The agency has 180 days from the day you filed your complaint to finish the investigation.  When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred. For a detailed description of the process, you can visit our website at http://www.eeoc.gov/eeoc/publications/fs-fed.cfm.

[34] Many states and localities have disability anti-discrimination laws and agencies responsible for enforcing those laws. The EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Individuals may file a charge with either the EEOC or a FEPA. If a charge filed with a FEPA is also covered under the ADA, the FEPA will "dual file" the charge with the EEOC but usually will retain the charge for investigation. If an ADA charge filed with the EEOC is also covered by a state or local disability discrimination law, the EEOC will "dual file" the charge with the FEPA but usually will retain the charge for investigation.