Employment and Hearing Loss
Sam Diehl, J.D. - Attorney, Gray Plant Mooty, Minneapolis, MN
Employment: The ADA and Reasonable Accommodations
Employment is one of the most important areas of legal rights for people with hearing loss. The ADA is the primary federal law relating to employment of people with disabilities. The law requires employers with 15 or more employees to provide qualified individuals with disabilities equal access to the employment opportunities available to others. The ADA prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other terms and conditions of employment. It restricts questioning about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless the accommodation would create an undue hardship for the employer. The larger the employer, the less likely they can successfully claim "undue hardship."
The Accommodation Process
For employees with hearing loss, it is important to know how to request reasonable accommodations in employment and what "reasonable" means. ADA accommodations may be relevant both in the initial application or interview process as well as in the day-to-day activities of the position. It is important to remember that employers do not need to provide accommodations if they are not aware of the individual's need. However, they cannot ignore the situation if the employer "knows or has reason to know" that the employee is experiencing workplace problems because of the disability, particularly if the disability may prevent them from asking for an accommodation. (see http://www.gtlaw.com/pub/alerts/1999/eeoc99.htm). For instance, someone with hearing loss may not be aware that they do not correctly understand communications. In these instances, the employer should inquire if reasonable accommodations are needed.
Requests for accommodations do not have to be in writing, but it is a good idea to make a written request in the event that there is a dispute about whether or when you requested accommodation. You may want to include the following information in your request:
- Identify yourself as a person with a disability;
- State that you are requesting accommodations under the ADA (and any relevant state law or the Rehabilitation Act if you are a federal employee);
- Identify your specific problematic job tasks;
- Identify your accommodation ideas;
- Request your employer's accommodation ideas;
- Refer to any attached medical documentation if appropriate; and
- Ask that your employer respond to your request in a reasonable amount of time.
Once you have made a request, your employer is obligated under the ADA to engage in an informal, interactive process with you. This process focuses on whether you have a disability under the ADA and why your requested accommodation is needed. In many instances, a simple conversation will suffice to resolve these issues but if it does not, the employer may ask for additional information. The employer may request reasonable documentation from an appropriate health care or vocational rehabilitation professional about your disability and functional limitations. If you do not use the "proper" language it does not excuse the employer from identifying and providing accommodations you need.
There are three categories of "reasonable accommodations":
- changes to a job application process;
- changes to the work environment, or to the way a job is usually done; and
- changes that enable an employee with a disability to enjoy equal benefits and privileges of employment (such as access to training).
While employers are required to consider reasonable accommodations, they do not have to provide a reasonable accommodation that causes "undue hardship." Undue hardship may include accommodations that are too expensive, unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business.
Once the employer and employee have engaged in this process, the employer may choose among reasonable accommodations as long as the chosen accommodation is effective. It is important to remember that reasonable accommodations are unique to each individual and their employer. Important factors may include the nature and requirements of the business and job at issue, the financial and other resources of the employer, and the nature and extent of the employee's disability.
Examples of Reasonable Accommodations
Reasonable accommodations may include everything from simple paper notepads to employer-paid sign language interpreters or stenographers. Employers, however, do not have to provide "personal use" items, such as eyeglasses, hearing aids, or similar devices. Examples of accommodations that may be reasonable for individuals with hearing loss include:
- Substituting computer technologies such as email, instant messaging, or chat or voice recognition software for audible communication;
- Providing assistive listening devices that enable an individual to focus directly on the sound source, reducing distractions from background noise;
- Providing sign language interpreters or stenographers;
- Training coworkers in basic sign language;
- Providing phone amplification technology, headsets, or TTY; and
- Considering environmental factors in meetings or other communications such as background noise, seating and positioning.
Enforcement of the ADA is carried out by the U.S. Equal Employment Opportunity Commission (EEOC) or state and local agencies that work with the EEOC. Complaints under the ADA generally must be filed within 180 days of the discrimination or within 300 days if filing with state or local agencies. Some state laws have different time limits and procedural requirements. Individuals may file their own lawsuit in federal court only after they receive a "right-to-sue" letter from a designated government agency.
*Sam Diehl is an attorney with the law firm of Gray Plant Mooty in Minneapolis, MN. He represents and advises employers in all areas of employment law and litigation.