Dec 202010
 

Questions and Answers about Deafness and Hearing Impairments

In the Workplace and the Americans with Disabilities Act

From The U.S. Equal Employment Opportunity Commission, July 26, 2006


Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed into law
on September 25, 2008 and becomes effective January 1, 2009. Because this law makes
several significant changes, including changes to the definition of the term “disability,” the
EEOC will be evaluating the impact of these changes on this document and other publications.
See the list of specific changes to the ADA made by the ADA Amendments Act.


INTRODUCTION

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees and state and local government employers of the same size. Section 501 of the Rehabilitation Act provides the same protections for federal employees and applicants for federal employment. Most states also have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and provide protections in addition to those available under the ADA.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. This document is part of a question-and-answer series addressing particular disabilities in the workplace. It explains how the ADA might apply to job applicants and employees with hearing impairments, including:

– when a hearing impairment is a disability under the ADA;

– when an employer may ask an applicant or employee about a hearing impairment;

– how employers can ensure the confidentiality of applicants’ and employees’ medical information;

– what types of reasonable accommodations an individual with a hearing disability may need;

– to what extent an employer must provide a reasonable accommodation to an individual with a hearing disability;

– how an employer should handle safety concerns and harassment issues; and,

– how an individual with a hearing impairment can file a claim against an employer under the ADA or the Rehabilitation Act.

GENERAL INFORMATION ABOUT HEARING IMPAIRMENTS

Between 2000 and 2004, estimates of the number of people in the United States with a self-described “hearing difficulty” ranged from 28.6 million 1 to 31.5 million.2 The number of individuals with hearing difficulty is expected to rise rapidly by the year 2010 when the baby-boomer generation reaches age 65. As compared to other age groups, the percentage of individuals with hearing difficulty is greatest among those individuals age 65 and above.3 A “hearing difficulty” can refer to the effects of many different hearing impairments of varying degrees.

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.4 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. 5 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 (e.g., childhood illnesses, pregnancy-related illnesses, injury, heredity, age, excessive or prolonged exposure to noise), and result in varying degrees of hearing loss.6 Generally, hearing impairments are categorized as mild, moderate, severe, or profound.7 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.”8

The many different circumstances under which individuals develop hearing impairments can affect the way they experience sound, communicate with others, and view their hearing impairment.9 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 – 15, below.)

1. When is a hearing impairment a disability under the ADA?

A hearing impairment is a disability under the ADA if: (1) it substantially limits a major life activity; (2) it substantially limited a major life activity in the past; or (3) the employer regarded (or treated) the individual as if his or her hearing impairment was substantially limiting.

The determination of whether a hearing impairment is substantially limiting must be made on an individualized, case-by-case basis.

Example 1: A job applicant has a bilateral, moderate hearing impairment that affects the transmission of lower frequencies of sound to her brain. As a result, she has difficulty hearing in conversations because vowel sounds tend to occur at lower frequencies that she cannot distinguish. She often must ask others to speak slower or louder, or to repeat statements she did not initially hear or understand. This applicant is substantially limited in hearing.

If an individual uses mitigating measures, such as hearing aids, cochlear implants, or other devices that actually improve hearing, these measures must be considered in determining whether the individual has a disability under the ADA. Even someone who uses a mitigating measure may have a disability if the measure does not correct the condition completely and substantial limitations remain, or if the mitigating measure itself imposes substantial limitations.

Example 2: An individual with a hearing impairment uses a hearing aid to amplify sounds. With the hearing aid, he can detect sounds such as traffic, sirens, and loud conversations at a very low level. For this reason, he must be in close proximity to the origin of sound in order to hear in a meaningful way. This individual is substantially limited in hearing even with the mitigating measure (i.e., the hearing aid).

Measures that merely compensate for the fact that someone has a substantially limiting hearing loss but that do not actually improve hearing, such as sign language interpreters or lip-reading, are not mitigating measures. Furthermore, if an individual does not use mitigating measures, then the hearing impairment must be considered as it exists, without speculation about how a mitigating measure might lessen the hearing loss.

Even if an individual’s hearing impairment does not currently substantially limit a major life activity, the condition may still be a disability if it was substantially limiting in the past.

Example 3: Malcolm is a floor manager with a clothing manufacturer. He applies for a promotion to assistant factory manager. In his application package, Malcolm chooses to inform the promotion committee that five years ago his hearing was permanently impaired in a workplace accident. Following the accident, Malcolm could barely hear and distinguish between floor-level conversations, public announcements, and warning alerts from moving machinery. Malcolm primarily communicated through writing and limited lip reading. Two years ago, Malcolm began using hearing aids in both ears. The hearing aids amplify sounds and help Malcolm to distinguish among them. As a result, Malcolm can now hear conversations sufficiently well to respond verbally. Malcolm’s ability to hear was substantially limited prior to acquiring his hearing aids. Therefore, Malcolm is an individual with a disability under the ADA because he has a “record of” a substantially limiting impairment.

Finally, an individual’s hearing impairment may be a disability when it does not significantly restrict major life activities, but the employer treats the individual as if it does.

Example 4: An individual who uses a hearing aid to correct a mild hearing impairment in one ear applies for a position as a security guard at a state courthouse. The employer refuses to hire the applicant, pursuant to a policy of disqualifying anyone who uses a hearing aid from working as a court security guard. The employer believes that this applicant and anyone who wears a hearing aid will be unable to locate the source of sounds that may indicate the presence of a threat or hear someone who calls for assistance in an emergency. The employer’s reason for excluding this particular applicant and other applicants who wear hearing aids would apply not only to this court security guard position, but to many federal, state, and local law enforcement jobs in which the ability to hear and respond to emergencies is critical. This employer has regarded the applicant as substantially limited in the ability to work in the class of law enforcement jobs.

For the full article: http://www.eeoc.gov/facts/deafness.html

– Thanks to Betty Cain and NVRC, 12/20/2010.