EEOC Issues Guidance on Accommodating Job Applicants and Employees with Hearing Disabilities

On January 24, 2023, the Equal Employment Opportunity Commission released updated guidance on how the Americans with Disabilities Act applies to job applicants and employees with hearing disabilities. The Q&A resource comes on the heels of the EEOC’s announcement of two settlements—one for $44,250 and the other for $180,000—with two employers accused of adverse employment actions against deaf individuals in violation of the ADA. Although the EEOC guidance does not contain new legal mandates, it is an important reminder to educational employers of how the agency will apply existing legal standards in cases involving individuals with hearing disabilities. Employers should review the guidance and their policies, procedures, and practices to mitigate the risk of challenges of employment discrimination by applicants and employees with hearing disabilities. The following is a summary of the major points from the guidance that employers should know.

When a Hearing Condition is a Disability

The guidance opens with a reminder of the broad definition of “disability” and the likelihood that an individual with a hearing condition will qualify as an individual with a disability under the ADA. The section includes a helpful summary of hearing conditions that may meet the ADA’s definition of disability. Examples of hearing conditions that could be disabilities under the ADA include deafness, being hard of hearing, experiencing ringing in the ears, and having sensitivity to noise. An applicant/employee does not need to be completely deaf or even have extreme hearing loss to be considered disabled under the law. The guidance also reminds employers that they may not consider the positive effects of mitigating measures, such as a hearing aid or cochlear implant, when determining if a hearing condition qualifies as a disability under the ADA.

Medical Information of an Applicant/Employee with a Hearing Disability

The ADA has strict rules about what medical information employers can seek from applicants and employees, including those with hearing conditions. The guidance reminds employees that the nature of the rules depends on whether the individual is in the pre-offer, post-offer, or employment stage, and applies those rules to hearing disabilities.

For example, the ADA prohibits an employer from asking questions about an applicant’s medical condition, even if a condition is obvious or the employee discloses the condition. The guidance notes that this rule means that asking questions about whether an employee has had medical procedures related to hearing, uses a hearing aid, or has a condition that affects hearing would be off limits. However, because the ADA allows an employer to ask questions about an applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation, an employer may ask question about how an applicant would respond to instructions in a noisy, fast-paced environment or the applicant’s communication skills without running afoul of the ADA. Similarly, if the employer is aware of the condition, they may ask whether the applicant needs an accommodation and what type if the employer reasonably believes that the applicant will require an accommodation to complete the application process or perform the job. Any information about an applicants condition must, of course, be maintained as strictly confidential. The guidance addresses the several exceptions to this general rule, the main one of which allows employers to share information with supervisors and managers “if necessary to provide a reasonable accommodation or meet an employee’s work restrictions.”

The guidance reminds employers that once an employee has an offer of employment or begins starting work, there is more leeway to ask questions about an applicant’s health and even require a medical examination if there are concerns about meeting job requirements. An employer should take care not to treat  individuals with hearing conditions differently than other employees unless there is evidence of a direct threat or other job performance issues related to the medical condition. And similar confidentiality requirements apply, including limitations on telling co-workers curious about an employee’s accommodations about the employee’s disability

Reasonable Accommodation v. Undue Hardship v. Fundamental Alteration

The ADA requires employers, including educational institutions, to make reasonable accommodations for disabled individuals as long as there is no undue hardship. A reasonable accommodation is any change in the work environment or in the way things are usually done that would enable an individual with a disability to perform the essential functions of the job. It’s always a challenge, with any disability, identifying accommodations that are reasonable but do not constitute an undue hardship for the employer.

The EEOC addresses this challenge in its guidance by providing several examples, illustrated with hypothetical scenarios, regarding the types of reasonable accommodations that an individual with a hearing disability may need. Examples include:

  • a sign language interpreter;
  • assistive technology including, but not limited to: hearing-aid compatible headsets, video remote interpreting services, hearing protection equipment, assistive software or applications and accessible emergency notification systems;
  • appropriate written memos and notes;
  • work area adjustments;
  • time off;
  • altering non-essential job functions;
  • reassignment to a vacant position; and
  • any other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

The EEOC emphasizes that assistive technologies for people with hearing conditions are now widely available and no longer prohibitively expensive. 

If your educational institution has an applicant or employee with a hearing disability, be prepared to engage in an interactive process with that person to determine what accommodations may be necessary and feasible. When setting up an interview with a job applicant who you know is deaf or hard-of-hearing, consider accommodations you can provide for the interview. You, as the employer, should be proactive in creating an environment where employees feel comfortable asking for reasonable accommodations when needed.

Safety Concerns

How can you handle safety concerns about applicants and employees with hearing disabilities? The EEOC cautions that employers should “not … act on the basis of myths, fears, or stereotypes about hearing conditions”; rather, employers “should evaluate each individual on [the individual’s] skills, knowledge, experience, and how the hearing disability affects [the individual].” You may exclude an individual with a hearing disability from a job for safety reasons only when the individual poses a “direct threat,” meaning significant harm that reasonable accommodations can’t mitigate. The guidance summarizes that standard and the factors that the EEOC will consider if it receives a complaint.

Reminder about Prohibition Against Disability-Related Harassment

EEOC’s guidance reminds employers that the ADA prohibits harassment based on disabilities and encourages employers to make clear in policies, handbooks, staff meetings and trainings that harassment based on disability or any other protected status will not be tolerated.

By creating a more inclusive and accessible workplace for individuals with hearing disabilities, you can attract and retain talented individuals while fulfilling legal obligations under the ADA. Be proactive in providing reasonable accommodations, assessing safety concerns, and preventing harassment based on hearing disability or any other disability.

For assistance in accommodating applicants or employees with hearing disabilities, contact the author of this post or any other Thompson & Horton attorney.