Have You Heard? The EEOC Issued New Guidance About Hearing Disabilities In the Workplace
The Equal Employment Opportunity Commission (EEOC) wants to remind employers that the Americans with Disabilities Act (ADA) protects deaf applicants and employees as well as those who have milder hearing disabilities.
Employers want to listen carefully.
Puns aside, the newly released EEOC Guidance extensively explains a few salient topics:
When can an employer ask an employee about a hearing condition?
Does an employer have to accommodate applicants with hearing disabilities or just employees?
Are there really that many reasonable accommodations that can be provided? And, if so, let’s discuss some of them.
Does an employer have to accommodate a worker with a hearing disability if there are safety concerns?
What can an employer do if a hearing-impaired employee is subject to harassment because of the employee’s hearing impairment?
The EEOC, the federal agency that enforces the federal anti-discrimination laws, including the ADA, must be weary of bringing lawsuits against employers who get it wrong, and, while not new or groundbreaking information, the Guidance provides helpful examples of common workplace scenarios and missteps.
As someone with a hearing impairment (I use a fantastic earpiece – you can’t even see it), I cheered when reading this guidance. The representative scenarios are so common and on point.
The EEOC has been particularly active lately, it seems, with respect to hearing impairments. Most recently, it sued one employer – and then settled the case – who fired a deaf employee after she complained of discrimination and requested to have a sign language interpreter during important meetings.
The employer allegedly denied her requests for accommodations and fired the employee based on the need to provide her with reasonable accommodations for her disability.
Let’s Refresh Ourselves About the ADA, Shall We?
The ADA requires employers with more than 15 employees to provide a reasonable accommodation to a qualified employee with a “disability,” a broadly interpreted term, that substantially limits one or more major life activity(ies) or has a record of a disability. A worker is “qualified” if that person possesses the skill, experience, and education to do the job and is able to perform the essential functions of a position with or without any reasonable accommodation.
This is not new.
A reasonable accommodation is just a change in the way duties are performed to help a disabled employee perform job duties or enjoy the benefits and privileges of employment. If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship,” defined as significant difficulty or expense for the employer given its size, financial resources, and the needs of the business.
While The Guidance Provides a Plethora of Information, Let’s Talk About Accommodations.
Accommodations vary – they depend on the nature of the disability. The accommodation you must provide is the one that works for both the employee and the employer.
I like that this Guidance provides a list of common accommodations that employers may provide:
A sign language interpreter;
Assistive technology, like a hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants (this sounds cool!); noise blocking equipment; or assistive listening devices, to name just a few;
Note-taking assistance for those using CART services or sign language interpretation (to allow individuals using CART services or sign language interpretation to remain focused on translations);
And, your more run-of-the-mill accommodations like use of accrued paid leave or unpaid leave if paid leave is unavailable, or modifying nonessential job duties.
You may be using an accommodation already on meetings or in presentations: the accessibility features on Zoom or Teams or whatever technology you use.
The bottom line is that a plethora of modifications and accommodations exist that can help a hearing-disabled candidate with the interview process or for the employee to do their job and enjoy equal opportunity.
Supervisors and HR, if you are stuck, check the website JAN for accommodations by disability and impairment.
Effective accommodations depend on an employee’s job duties, the workplace itself, and the type of job and position.
But don’t take it from me.
Like with any disability, employers must engage in the interactive process to understand of how a person’s hearing condition affects their ability to do the job. And, of course, employers must keep any information an applicant or employee discloses about a medical condition confidential.
Employers, Take Advantage of This Resource
Employers should review the new guidance with counsel to ensure comprehension and ask questions. You do not want to find out the hard way what you could and should have done. The EEOC is listening to employees that are deaf, hard of hearing, or have other hearing conditions. Employers are wise to familiarize themselves with this guidance instead of relying on stereotypes and assumptions.