The Americans with Disabilities Act (ADA) was signed into law in 1990, and Title I of the ADA provides a framework for ensuring that people with disabilities are treated fairly in the workplace and have access to employment opportunities. The Equal Employment Opportunity Commission (EEOC) – the federal agency charged with enforcing the ADA – occasionally issues guidance documents addressing particular disabilities in the workplace, such as depression, blindness, and cancer, and recently issued new guidance relating to employers’ responsibilities when dealing with hearing disabilities in the workplace. Given that approximately 15% of Americans report hearing limitations, the importance of these guidelines should not be taken lightly.

Hearing conditions as disabilities under the ADA

People with hearing disabilities are protected under the ADA if “they can show they are substantially limited in hearing or another major life activity” (or if they have a record of a substantially limiting impairment or are regarded as having such an impairment). The EEOC explains that such a determination must be made by ignoring “the positive effects of any mitigating measure that is used” such as hearing aids or cochlear implants. In other words, if an employee’s hearing is substantially limited without the use of an implant or aid, that employee is considered disabled under the ADA and their use of an implant or aid does not change this disability status.

Obtaining and using an employee’s medical information

Per the EEOC’s guidance, whether an employer can ask applicants or employees questions relating to their hearing depends on timing.

• Pre-offer job applicants: Employers may not ask job applicants if they have a hearing condition or require a medical exam, even if the condition is obvious. However, employers may ask questions relating to an applicant’s ability to perform the essential functions of the job, with or without a reasonable accommodation, such as whether the applicant can work in a noisy, fast-paced work environment. Only if the applicant’s impairment is obvious or the applicant has voluntarily disclosed a hearing impairment, and the employer reasonably believes the applicant will require an accommodation (either to complete the application process or perform the job) may an employer ask whether the applicant will need an accommodation and, if so, what type.
• Post-offer job applicants: After a job offer is made the employer may only ask questions about the applicant’s health and require a medical exam if all applicants are asked the same questions and are required to take the same examination. If the applicant discloses a hearing impairment, the employer may ask follow-up questions, such as what hearing limitations the individual has and what accommodation(s) the applicant may need to perform the job. The employer may not withdraw an offer from an applicant with a hearing disability unless the individual’s performance of the job would pose a direct threat to the health and safety of the applicant or others, and this threat cannot be eliminated or reduced through reasonable accommodation.
• Existing employees: An employer may ask hearing or disability-related questions when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes the problems are related to a medical condition. If the performance problems cannot reasonably be attributed to a problem with the employee’s hearing, the employer may not ask for medical information and must handle the matter pursuant to the employer’s existing policies. An employer may also ask about a hearing condition if it has a reasonable belief that the employee will be unable to safely perform the job because of it.

Regarding employee medical issues, employers should not only exercise caution as to what information they seek from employees but also safeguard that information consistent with their legal obligations related to employees’ private information. The EEOC’s guidance provides that an employer must keep confidential any medical information it learns about an employee. However, there may be instances where limited disclosures are acceptable, such as (1) to supervisors and managers where necessary to provide a reasonable accommodation; (2) to first aid and safety personnel where an employee requires emergency treatment or other assistance; (3) to assist individuals investigating compliance with the ADA or similar state and local laws; or (4) where needed for workers’ compensation or insurance purposes.

Reasonable accommodations

Employers are required to provide reasonable accommodations to enable persons with hearing disabilities to perform their jobs or to participate in the job application process. Reasonable accommodations can include, among other examples, the use of sign language interpreters, assistive listening devices, CART (computer-aided real-time translation), and work-area adjustments such as a desk away from a noisy area. Online meeting services such as Zoom and Microsoft Teams offer options for creating closed captioning in meetings and webinars.

Accommodations must be provided, after engaging in an interactive process with the individual, as long as doing so would not result in an undue hardship (a significant difficulty or expense) to the employer. However, employers are not required to eliminate essential functions of a job or provide employees with personal use items as a reasonable accommodation. Moreover, employers are not necessarily required to provide the employee’s first choice of reasonable accommodation if multiple accommodations would be effective.

Safety and prohibitions against harassment, retaliation, and interference

While employee safety should be paramount, including the safety of persons with hearing disabilities, the EEOC’s guidance provides “an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing conditions.” Safety assessments should be evaluated on an individual basis, focusing on the “direct threat” posed by the employee, which includes assessing the duration of the potential risk, nature and severity of the potential harm, likelihood such harm may occur, and imminence of such harm. Employers also should consider whether any risk can be reduced or eliminated by reasonable accommodation.

Similarly, the ADA prohibits harassment or offensive conduct based on an individual’s hearing disability, retaliation against an individual for requesting a reasonable accommodation, or interference with an individual’s exercise of rights under the ADA. Employers should remain vigilant in their training and policies to prevent such behavior in the workplace.

Going forward

Employers should ensure that anyone involved in hiring and management is aware of the ADA requirements and EEOC guidance related to hearing disabilities in the workplace, as well as any additional obligations that might exist under state and local laws. This includes human resources and recruiting teams as well as day-to-day managers likely to interact with employees with hearing disabilities on a daily basis. Failure to prevent discrimination and harassment may subject an employer to an EEOC investigation as well as a civil lawsuit for compensatory and punitive damages.