Did You Hear? The EEOC Issues New Guidance on Auditory Disabilities in The Workplace (US)
Hearing impairment probably isn’t the first thing that comes to mind when you think about workplace discrimination. In fact, it’s probably not even in the top ten. With hearing impairment affecting about 15% of adults, however, this is a topic that has recently moved its way up the EEOC’s priority list.
Last week, the EEOC published guidance addressing hearing disabilities in the workplace. This came on the heels of two settlements the EEOC announced earlier this month on behalf of hearing-impaired individuals. One settlement was with a Minneapolis-based healthcare provider that failed to hire a deaf applicant for a greeter position. The other settlement was with a Colorado-based parts manufacturer who fired a deaf employee after she complained of discrimination and requested to have a sign language interpreter present during meetings. The EEOC also announced in September that it sued a national staffing agency for failing to refer a deaf applicant for a retail warehouse position on account of her hearing impairment.
The guidance reminds employers that the ADA protects individuals with varying degrees of hearing impairments. An employee doesn’t need to be completely deaf to qualify—it is enough if he or she is “substantially limited in the major life activity of hearing.” The EEOC stated that this determination is made without considering “the positive effects of any mitigating measure[s]” such as hearing aids.
The guidance also directs employers on what to do when they suspect an applicant or employee may have a hearing impairment. For example:
Before making a job offer, employers should not ask applicants whether they have a hearing condition or ask them questions about the condition, even if the impairment is obvious. However, an employer may ask whether an applicant needs an accommodation (and what type) if the employer reasonably believes that the applicant is in need of one.
After making a job offer, employers may ask about the applicant’s health (including questions about the applicant’s disability) so long as the employer asks all applicants for that job the same questions. If the applicant discloses his or her hearing impairment, employers may ask additional questions in the post-offer stage, such as, how long the individual’s hearing has been impaired, what specific hearing limitations the individual experiences, and what reasonable accommodations the applicant may need to perform the job.
During employment, employers may ask about an employee’s impairment when the employer has observed symptoms (such as difficulties hearing), or when it has received reliable information (such as from a family member or co-worker) that the employee may have a medical condition that is causing performance problems or safety concerns.
Lastly, the guidance provides various types of accommodations that employers may consider using with hearing-impaired applicants and employees. Examples include assistive technology (such as automated captioning or telephone amplifiers), assistive listening devices, sign language interpreters, or simply altering the employee’s non-essential job functions. (Note: some virtual meeting platforms provide free real-time closed captioning for virtual meetings. To find this option on Microsoft Teams, click on “More,” then “Language and Speech,” and then “Turn on Live Captions”).
While there are many ways to assist employees with auditory impairments, employers are not required to provide accommodations that result in an undue hardship (i.e., result in significant difficulty or expense to the employer). Because each case depends on unique facts and circumstances, reach out to legal counsel if you have questions about accommodating hearing impaired applicants or employees in your business.