No predominance, no class

The plaintiffs in Elson v. Black brought a putative class action against the manufacturers of the …

“FasciaBlaster, a two-foot stick with hard prongs that is registered with the Food and Drug Administration as a massager,” alleging that they “falsely advertised that the FasciaBlaster was able to ‘virtually eliminate cellulite,’ help with weight loss, and relieve pain.” The Fifth Circuit affirmed the dismissal of those class claims, noting that class-wide issues did not predominate:

1. Law. “[V[ariations in state law here ‘swamp any common issues and defeat predominance’” as to reliance and other basic matters; and
2. Fact. “Plaintiffs’ allegations introduce numerous factual differences that in no way comprise a coherent class. … [T]he named plaintiffs do not complain about the same alleged misrepresentations. Some are disgruntled because they expected the FasciaBlaster to reduce cellulite. Others are dissatisfied because they expected it to reduce their pain or address certain health concerns. And others are displeased because they expected it to help them lose weight. … Moreover, even within these groups, the possibility of class analysis disintegrates because the members did not rely on the same alleged misrepresentations.”

No. 21-20349 (Jan. 5, 2023).

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What A FAPE Really Is

This blog entry discusses just what is in IDEA FAPE anyway. It is a Sixth Circuit published decided on January 4, 2023, in the case of Doe v. Knox County Board of Education, here. As usual the blog is divided into categories and they are: key facts taken directly from the opinion; issues presented; court’s reasoning that IDEA exhaustion is not required because a FAPE is not involved; court’s reasoning that plaintiff’s request for preliminary injunction must be referred to the lower court; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Key Facts Taken Directly from the Opinion

 

The complaint describes misophonia as “a disorder of decreased tolerance to specific sounds or their associated stimuli.” Id. According to Doe, the normal sounds of eating food or chewing gum cause her to suffer “great fear and anxiety.” Id., PageID 252. These common noises trigger a “fight or flight” sensation, forcing Doe to escape from areas in which she hears them. Id. They also exacerbate her recurring migraines. Id.

Before high school, Doe’s misophonia did not affect her academic performance. Id., PageID 255. Her private middle school barred students from eating food and chewing gum in classrooms. Id. She thus could attend class without incident and excelled at her academics. Id., PageID 253-54. Doe was a “straight A student” and National Junior Honors Society member. Id., 253, 255; Doe Decl., R.27-2, PageID 265.

According to Doe’s complaint, most of Knox County’s public high schools likewise bar students from eating food and chewing gum outside the cafeteria. Compl., R.27, PageID 255. Yet Doe decided to attend L&N STEM Academy. Id., PageID 250. This high school’s policy allegedly allows each teacher to decide whether students may eat food and chew gum on a class-by-class basis. Id., PageID 255-56. Some teachers, like Doe’s ninth-grade math teacher, prohibit food and gum, so she has flourished in this class. Id., PageID 256. The high school also prohibits eating food or chewing gum in areas with “expensive equipment,” such as digital-art classrooms. Doe Decl., R.27-2, PageID 266. But other teachers, like Doe’s ninth-grade history teacher, allegedly allow “rampant” eating and chewing. Compl., R.27, PageID 256. The high school also allows students to eat throughout an 80-minute elective (“Genius Hour”) that Doe would like to take. Id., PageID 257. L&N’s permissive policies have forced Doe to avoid this elective and to leave her regular classes about 50% of the time, rendering her “physically and emotionally exhausted” at day’s end. Id., PageID 256.

Doe’s parents repeatedly asked Doe’s teachers to ban eating and chewing during her classes. Id. But some teachers allegedly have refused on the ground that L&N’s official policy permits this conduct. Id., PageID 257. Doe’s parents thus turned to the school’s administrators, asking them for this accommodation about halfway through her ninth-grade year in December 2021. Id. The administrators denied the request. Id., PageID 258-59. But they noted that Doe’s parents could appeal this decision administratively. Id., PageID 259 n.8.

The next month, her parents instead brought this suit on Doe’s behalf against Knox County. They alleged that the county’s refusal to grant Doe the requested accommodation—a classroom ban on eating and chewing for all students except those with medical needs—violated the ADA and Rehabilitation Act. Id., PageID 255, 259-60. They requested a permanent injunction that would require L&N to implement the accommodation for Doe. Id., PageID 260-61.

Knox County also described the accommodations that L&N had provided to Doe. Since her arrival at the school as a ninth grader, Doe has had a “504 plan” (a plan under § 504 of the Rehabilitation Act). Odom Decl., R.44-2, PageID 451. Among other things, this plan gives Doe preferential seating near the teacher and allows her to wear noise-cancelling headphones. Id. It also gives her additional time to complete assignments and permits her to take tests in isolation. Id. Under a “`break’ system” that administrators developed with Doe’s parents, moreover, she could signal to a teacher that she needed a break of a specified length and obtain a new seat on her return to class. Id. But administrators allege that Doe stopped using this “collaborative” system and started leaving class without attempting to return. Id., PageID 452.

According to L&N’s principal, Doe’s teachers have all requested that her peers limit eating in class. Allen Decl., R.44-1, PageID 446. But Doe responds that her case has now attracted unwanted local attention. The Knox County mayor, a retired professional wrestler who competed under the moniker “Kane,” has described the suit as “gum gate” on Twitter. Br., R.15, PageID 168. (The mayor has no affiliation with the Knox County Board of Education.) According to her father, this attention has caused some cruel students to target Doe by making noises that trigger her condition. K.M. Decl., R.31-1, PageID 359.

II

Issues Presented

1. Does this case require exhaustion under the IDEA?
2. If, exhaustion is not required, should the court grant plaintiff’s request for a preliminary injunction?

 

 

III

Court’s Reasoning That the Case Does Not Require Exhaustion under the IDEA Because a FAPE Is Not Involved

 

1. Fry, which we discussed here, is the first thing that has to be looked at.
2. In Fry, the Supreme Court identified the relief that the IDEA makes available to students. It then held that the IDEA allows parent to seek relief for only one injury, which is the denial of a free appropriate public education (FAPE). The Supreme Court added that parent need not exhaust IDEA if they seek some other benefit that an IDEA hearing officer could not provide.
3. In Fry, the Supreme Court adopted a complaint centered approach. It held that the key was figuring out whether a free appropriate public education was the crux of the complaint. If it was, exhaustion was required. If it was not, exhaustion was not required.
4. Fry posed three questions. First, could a student’s parents have sought the relief if the challenged conduct had arisen outside the school in say a public theater or library? Second, could a teacher or guest at the school rather than the student have requested the same relief? If the answer was no to those questions, the parents were likely seeking a free appropriate public education. However if the answer was yes to those questions, a student was likely not seeking a free appropriate public education. Another factor the Supreme Court considered was whether the parents were using IDEA processes before bringing suit. If they were, that would suggest that they believed they were seeking an IDEA related remedy.
5. Although Fry directed courts to ask whether the key to the complaint was whether a free appropriate public education was the sought for relief, it didn’t offer much input into what the term of art meant.
6. The IDEA text and circuit precedent makes it clear what is required when parents are seeking relief that is available under the IDEA only. In that situation, parents are seeking relief under IDEA only if a child needs an instructional change and not just a noninstructional accommodation to some school rule or policy.
7. IDEA requires States to give a free appropriate public education only to students with disabilities. IDEA connects both phrases to the term, “special education.” A free appropriate public education is defined as special education and related services provided in conformity with a child’s IEP. It defines a child with a disability as a child with certain impairments who by reason thereof needs special education and related services. In other words, free appropriate public education and special education, for a child with a disability is a student needing that type of education.
8. The definition of special education in the IDEA shows that a request for a free appropriate public education is a request for uniquely tailored teaching. Special education under IDEA means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and other institutions, in other settings, and instruction in physical education.
9. To request a free appropriate public education, parents must seek instruction that is specially designed. That is, they have to seek relief about the action of instructing or teaching their child or imparting of knowledge or skill to him or her. That requested teaching must also exceed what is usual or customary. An IDEA regulation puts it as parents must seek a change to the content, methodology, or delivery of the teaching to address the unique needs of a child ensure access of the child to the general curriculum.
10. The definition of related services confirms that a child must need teaching changes in order to receive services. The phrase includes transportation and developmental, corrective, and other supportive services that may be required to assist a child with a disability to benefit from special education. It is therefore expanding the available relief the cover items required for a child to obtain specially designed instruction.
11. IDEA does not allow parents to seek the services independent of specially designed instruction. In other words, services cannot be related to special education if the child does not need special education. As an IDEA regulation explains, a child does not qualify for the benefits of the IDEA if the child only needs noninstructional accommodations.
12. A child may qualify for relief under the ADA or the Rehabilitation Act and not IDEA because the ADA and the Rehabilitation Act cover children who need regular and not just special education.
13. Circuit court cases agree with the general rule that the IDEA requires instructional changes. Courts also require administrative exhaustion when parents are seeking a change to the delivery or methodology of their child’s instruction.
14. Courts also generally hold that parent need not exhaust claims challenging noninstructional harms, such as a service animal.
15. The court saved the question of whether the IDEA exhaustion rule is jurisdictional for another time.
16. Plaintiff did not need to proceed through the IDEA administrative processes because there complaint did not request any instructional changes. Instead, they asked for a ban on eating and chewing in all of her academic classrooms, which has nothing to do with an instructional change.
17. A ban on eating and chewing is neither special education nor a related service. Also, no ordinary speaker would describe such a ban as specially designed instruction either because there is nothing innately instructional about the prohibition. That is, such a prohibition would not change the content, methodology, or delivery of the instruction given to the plaintiff. Instead, this change would be more naturally described as a change to the physical school environment much in the way a ramp would change the environment for a person in a wheelchair or a peanut prohibition would change the environment for student allergic to peanuts.
18. Limits on eating and chewing gum in a classroom could not be typically called a service. Even so, it doesn’t matter whether a service is involved at all because the plaintiff does not allege any facts suggesting that their child needed other specially designed instruction. In fact, the complaint alleged that she excelled at her educational endeavors when the problematic sounds have not pervaded her classroom. Allegations were also made that she had no problem with the content of the instruction or the way that teachers deliver it. So, the plaintiff is requesting the accommodation to gain access to regular education and not to special education.
19. The request made by the plaintiff looks nothing like the typical kind of request that courts have found falling within the IDEA, such as a request for a one-on-one aide or for a teacher to integrate a child’s iPad into the teacher’s lesson plans.
20. Fry’s two hypothetical questions also support this conclusion. For one, plaintiff could have tried to seek an eating and chewing ban in many other places beside the school. Also, other people could have requested the same type of ban sought by plaintiff’s parents in this case.
21. Plaintiff’s parents have never sought an IEP for plaintiff under the IDEA. Instead, she has only been provided with a §504 plan under the Rehabilitation Act. In fact, litigation already occurred specifically making it clear that plaintiff was not eligible for IDEA services.
22. Trying to apply the Fry questions does not mean confusing the challenged conduct with the resulting injury. That approach was specifically rejected by Fry.
23. Since plaintiff seeks no instructional changes, plaintiff did not need to exhaust IDEA processes.

 

 

IV

Court’s Reasoning That Plaintiff’s Request for Preliminary Injunction Must Be Referred to the Lower Court.

 

 

1. The DOJ has issued regulations, 28 C.F.R. §35.130(c)(7)(i), that a public entity has to make reasonable modifications to policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modification fundamentally alters the nature of the service, program or activity. So, plaintiff’s parents must show that a switch from a policy allowing food in the classroom to a policy prohibiting food qualifies as a moderate rather than a significant change in the relevant policy. They also must deal with the proposition put forward by the school that a change like that requires the college -like school to alter its entire (i.e. a fundamental alteration), because it does not have a designated cafeteria.
2. In Rehabilitation Act cases, courts have held that parents must show not just that their preferred accommodation was reasonable but also that the provided the accommodation was unreasonable. Further, the law suggests that plaintiff’s parents would have to show that the §504 plan provided to her by the school district was unreasonable giving due regards to the professional judgment of school administrators.

 

V

Knox County Board Takeaways

 

1. I have always thought that Fry was very difficult to apply in the real world.
2. If Doe prevails, by definition it would be very unlikely that a person in a 504 plan would ever have to exhaust administrative remedies because 504 plans do not involve specially designed instruction.
3. Depending upon the Supreme Court decision in Perez, which is the other blog entry for today, the issue of instructional changes may become a very big deal indeed.
4. Doe means that school districts need to have separate procedures for violation of an IDEA FAPE v. a Rehabilitation Act FAPE.
5. The court gets it wrong in its preliminary injunction discussion with respect to what is a reasonable modification. A reasonable modification has nothing to do with it being moderate. Instead, the question is whether it constitutes an undue burden or a fundamental alteration, which is a completely different question. One can even argue that a significant change is a lower bar than a fundamental alteration.
6. Professional judgment of school administrators is a thing. That is, courts will respect the judgment of school administrators providing the school goes through its proper paces, such as we discussed here and what happens when they don’t, here.
7. This case will also ask plaintiff attorneys to carefully consider whether their client’s situation can be handled entirely under a 504 plan because under this case, the odds would be very high that exhaustion of administrative remedies would not be required for a student only in a 504 plan.
8. This case may also force plaintiffs and their attorneys to consider whether they want to resist any effort by the school to force their student into the IDEA system rather than the 504 system.

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“It’s Turtles All the Way Down” – FTC Focuses on AWS Security

This week, let’s look at a recent Consent Order between the Federal Trade Commission (FTC) and ed tech platform …

, Chegg, and then consider what lessons can be drawn about Amazon Web Services (AWS).

Privacy Plus+

Privacy, Technology and Perspective

“It’s Turtles All the Way Down” – FTC Focuses on AWS Security.

But first – Here is an explanation of the Turtle Metaphor and an Overview of IT Services: The title of this post is well-worn, but we’ve never written it down until now.  Instead, for a long time, we’ve talked about a story that we once heard in a poetry class (thank you Professor Willard Spiegelman!), and we’ll re-tell as follows:

An elderly lady who was a member of a garden club was listening politely to a lecture on the origins of the universe.  After the lecture ended, the lecturer, a well-known expert on the Big Bang Theory, asked if there were any questions or comments. The lady raised her gloved hand and, once acknowledged, said:

“But sir, you have it all wrong.” The lecturer looked at her skeptically and asked:

“Well, what do you mean?”  She explained:

“The World, in fact, sits on the back of a turtle.” Her certainty made him pause. He raised his eyebrows, took a breath, then replied:

“Interesting theory, Madame.  Let me ask: What does that turtle sit on the back of?” Without missing a beat, she explained further:

“That turtle sits on the back of another turtle, of course.”  He cocked his head, smiled, and, catching on, replied:

“And let me guess, that that turtle sits on the back of another turtle!”  She beamed, exclaiming:

“Yes!  It’s turtles all the way down!”

“It’s turtles all the way down” is an apt metaphor for information technology infrastructure because most IT service providers build their services on top of other services (provided by other IT service providers), most often ending with data storage services provided by AWS, Microsoft Azure, or Google.  Associated data flows through this rich ecosystem.  That is why data mapping—understanding and documenting where your data is, who is processing it, and how it is being used and secured—is so important. In this environment, AWS, Microsoft, and Google are terminal turtles, so to speak.

The big wrinkle is that few organizations can negotiate with AWS, Microsoft, or Google. Consequently, most organizations must accept the standard terms that come with AWS, Azure, or Google services.  These contracts are unilaterally prepared and offered by those organizations as the parties with superior bargaining strength, among other things.

FTC Faults Chegg for Insufficient AWS Security (and a Data Breach): In late October, the FTC filed a Complaint against Chegg for its lax data security practices associated with using AWS storage, specifically, AWS’s Simple Storage Service (S3).  Essentially, the FTC faulted Chegg for failing to configure the S3 services appropriately. Specifically, the FTC noted that Chegg:

• ·       Failed to require its employees and contractors to use distinct access keys to access the S3 database;

• ·       Failed to utilize multi-factor authentication (MFA);

• ·       Failed to rotate access keys to the S3 databases;

• ·       Failed to encrypt sensitive data;

• ·       Failed to update its cryptographic hash;

• ·       Failed to restrict access based on job role or function; and

• ·       Failed to maintain written security and retention policies, provide adequate training, and monitor its systems adequately.

The FTC alleged that Chegg’s deficient security practices led to multiple data breaches.  Rather than fight these allegations, Chegg decided to settle.  Notable in the proposed Consent Order is that the FTC is requiring Chegg to provide a mechanism for consumers to access or delete their data, even though such access and deletion rights do currently not exist under any federal law.

Links to the Chegg Complaint and proposed Consent Order follow:

https://www.ftc.gov/system/files/ftc_gov/pdf/2023151-Chegg-Complaint.pdf

https://www.ftc.gov/system/files/ftc_gov/pdf/2023151-Chegg-Decision-and-Order.pdf

Our thoughts: AWS arguably bears some responsibility here.  In an ideal world, AWS, Azure, and Google should all offer security by default. By shifting the burden of configuring their various environments to their customers, those customers are disadvantaged, especially when they have no viable alternatives or power to negotiate the contractual terms (which also cap liability to the meager amount of fees paid).  Interestingly, AWS may be having the same thoughts.  We noticed an announcement on January 5th that S3 is now encrypted by default.  A link to that announcement follows:

https://aws.amazon.com/blogs/aws/amazon-s3-encrypts-new-objects-by-default/

Regardless, organizations whose worlds sit upon turtles, like AWS, Azure, or Google, will want to ensure that their security settings are correctly configured.  We would suggest taking a closer look at Chegg for specifics. Also, those organizations should ask their service providers who rely on AWS, Azure, or Google services for assurances in their contracts that those environments are securely configured.  After all, “it’s turtles all the way down.”

— 

Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.

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Frequently Asked Questions About Texas ABLE Accounts

Barrack Obama signed the Achieving a Better Life Experience “(ABLE”) Act into on December 19, 2014. It requires each state to pass its own ABLE Act. Governor Greg Abbott signed the Texas ABLE Act on June 19, 2015.

The ABLE Act creates an option for eligible people with disabilities to save money in a tax-exempt account while preserving their eligibility for federal public benefits.

Why Are ABLE Accounts A Big Deal?

Millions of people with disabilities rely on public benefits such as Supplemental Security Income (SSI) and Medicaid. These benefits are means-tested, which means that those with countable assets greater than $2,000 can lose their eligibility to receive these benefits, which requires people receiving these benefits to remain poor.

The ABLE Act allows eligible individuals and their families to establish ABLE savings accounts that will not be counted for purposes of eligibility. Because funds in an ABLE account are not counted for purposes of determining eligibility for means-tested benefits, Americans with disabilities can have a financial cushion to pay for qualified disability expenses while preserving their eligibility for Medicaid and SSI, and other public benefits

Who Is Eligible To Be An ABLE Account Beneficiary?

Not everyone can have an ABLE account. To be eligible, individuals must meet two requirements:

• The beneficiary’s onset of the disability must have occurred before the beneficiary’s 26th birthday; and
• The beneficiary must either meet the disability requirement for Supplemental Security Income (SSI) or Social Security disability benefits and are receiving those benefits or submit a “disability certification” from a licensed physician confirming that the individual meets the disability criteria in the ABLE Act.

Only those whose onset of disability occurred before age 26 are eligible to start an account. This does not mean that those over 26 cannot open an account. Even those over 26 can open an ABLE account as long as the onset of their disability occurred before their 26th birthday.

Who Can Open and Contribute To ABLE Accounts?

A parent or guardian, or a power of attorney for an individual can open an ABLE account for the individual. Anyone, including friends, family, or even the individual can contribute to the account; however, there is a $17,000 annual combined contribution limit in 2023.

That does not mean that multiple people can give $17,000 per year. The total combined gifts made to any ABLE beneficiary cannot exceed $17,000 per year. The maximum amount that can be contributed annually may be periodically adjusted to account for inflation.

Additionally, some ABLE account owners who work can contribute funds to their ABLE account in excess of the $17,000 annual contribution limit if they do not have an employer-sponsored retirement plan. In 2023, the maximum that can be contributed is $13,590.

What Can An ABLE Account Pay For?

ABLE accounts can be used for Qualified Disability Expenses. The ABLE Act defines “qualified disability expenses” as “expenses related to the eligible individual’s blindness or disability which are made for the benefit of an eligible individual who is the designated beneficiary.”  It also lists a range of potential expenses that can be paid for from funds set aside in ABLE accounts including:

“Education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expenses, and other expenses, which are approved by the Secretary under regulations and consistent with the purposes of this section.”

The IRS has indicated that the term “qualified disability expenses” should be “broadly construed” to include any benefit related to the designated beneficiary “in maintaining or improving his or her health, independence, or quality of life.”

Who Owns An ABLE Account?

The eligible person with a disability, known as the designated beneficiary of the ABLE account, is the owner of the account and decides how the money should be spent. A disabled person who does not have the capacity or desire to exercise authority over the account, another authorized legal representative, such as a parent, guardian, or a power of attorney, can do so.

How Much Can Be Saved In An ABLE Account?

The maximum lifetime contribution limit is $370,000, but if the account balance exceeds $100,000, the beneficiary’s eligibility for SSI may be suspended until such time as the account falls back below $100,000. However, even though the beneficiary’s eligibility for SSI is suspended, the beneficiary will continue to be eligible to receive medical assistance through Medicaid.

Are Contributions or Withdrawals From ABLE Accounts Taxed?

Although contributions to ABLE accounts are not deductible for federal income tax purposes, income earned on the funds invested in an ABLE account is not subject to federal income taxes until they are distributed. Additionally, distributions made for qualified disability expenses are tax exempt.

What Happens To Funds When The Beneficiary Dies?

When the beneficiary of an ABLE account dies, funds from an ABLE account can be used to repay outstanding qualified medical expenses and funeral or burial costs.

If the beneficiary was receiving Medicaid benefits, Medicaid can file a claim to recoup Medicaid-related expenses spent on the beneficiary through the Medicaid program from the inception of the account.

Any remaining funds can be distributed to a remainder beneficiary identified in the account documents, or if a beneficiary is not identified, then to the beneficiary’s estate. If the beneficiary has left a Will, the Will controls how the funds will be distributed. If the beneficiary dies without a Will, then the Texas Intestacy Statutes will control.

To find out more about the program, read the Texas ABLE Program Disclosure Statement and Participation Agreement(pdf).

This article was originally published on February 6, 2019, and updated on January 27, 2023.

The post Frequently Asked Questions About Texas ABLE Accounts appeared first on Rania Combs Law, PLLC.

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Who Bears the Burden of a Newly Discovered Non-Participating Royalty Interest?

The question in Brooke-Willbanks v. Flatland Mineral Fund LP, et al was which party to a Texas mineral deed would bear the burden of two previously reserved nonparticipating royalty interests.

The facts

Kay Brooke-Wilbanks owned a 45/100 mineral interest in 320 acres in Howard County, which is equivalent of an undivided 144-acre mineral interest. Her conveyance to Flatland was of an “undivided 72 net mineral acres in 320 acres” and was subject to subsisting oil and gas leases. There were no reservations or exceptions. At the time of the conveyance there was a lease with a 3/16 royalty. During negotiations for a sale of 36 net mineral acres to Expedition, Flatland became aware of two NPRI’s arising out in the 1940’s that burdened the mineral interest. Flatland asked Brooke-Willbanks to execute a correction deed. She refused and sued Flatland to quiet title and for a declaratory judgment.

The question

Did the parties intend that the previously reserved NPRIs would burden Brooke-Willbanks only or the parties proportionately?

The parties disagreed as to the meaning of “net mineral acre”, which treatises have defined this way (thank you Cliff Squibb): “One net mineral acre is typically considered to equal the fee simple mineral estate in one gross acre of land.”  The court determined that “net mineral acre” as used in the granting clause was subject to only one reasonable meaning: an undivided fee simple mineral interest in the 72 acres that Brooke-Willbanks conveyed to Flatland, including the right to receive royalty payments therefrom.

The court harmonized all parts of the deed to give effect to all of its provisions. The subject-to clause further clarified the intent of the parties. In the ordinary sense, subject-to clauses limit the estate and associated rights that are granted to a party. At the time of the conveyance, Brooke-Willbanks owned only a possibility of reverter and a royalty interest.

The court determined that the parties intended that Flatland would take its interest subject to the outstanding existing oil and gas lease and receive the same interests that Brooke Willbanks possessed, which was a future reversionary interest and a royalty interest in the 72 acres.

The subject-to clause also clarified the amount of royalty interest conveyed. A severed fraction of a royalty interest such as an NPRI generally would burden the entire mineral estate because it necessarily limits the royalty interest attached to the underlying mineral interests. This principle informed the court’s interpretation of the deed but did not compel an outcome because parties are free to contract for whatever division of interest suits them.

The subject-to clause clarified that Brooke-Willbanks granted “ .... the above stated interest and the grantor’s interest in the royalties ... “, which was the royalties in 72 acres. The clause limited Flatland’s interest as grantee to what Brooke-Willbanks possessed at the time, which was royalties associated with 72 acres. There was no express intent to convey anything otherwise.  By the use of “net mineral acres” the parties expressed an intent to convey a fixed amount of mineral acres.

The court declined to follow the estoppel principle defined in the Duhig Rule.  The court also relied on the recitation that it was the specific intent of the instrument to convey “the right to receive all royalties associated with the interests conveyed”.  This indicated that the intent was for Flatland to take the royalty interests associated with the undivided 72 acres as it existed at the time of the conveyance.

The answer

The outstanding NPRI’s burdened the parties’ royalty interest proportionately.

David Crosby, RIP.

You have your

Byrds Crosby

CSN Crosby

Solo Crosby

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Why the Distinction Between Deaf and deaf Matters: EEOC Guidance on Hearing Disabilities in the Workplace and the ADA

Sometimes you have a blog entry all ready to go in your mind. You are even rehearsing the outline of it in your mind. However, something then intervenes and you feel compelled to blog about something else. This is exactly what happened to me for the blog entry of this week. I had been outlining in my mind how I would approach the oral argument in Perez v. Sturgis Public Schools. There is also a Sixth Circuit case, Doe v. Knox County Board of Education, that goes along with that. However, yesterday the EEOC issued a guidance on hearing disabilities in the workplace and the ADA, here. As a deaf proud person, I had no choice but to blog on that guidance. As I have done before when it comes to guidances, I am going to cut and paste the whole thing. Whenever I have comments on a particular section, I will just put in the term “my thoughts,” so y’all know when I am talking. Also, that paragraph will be in italics. Finally, if “my thoughts,” doesn’t appear at the end of the section, that means I don’t see any flags in that section.

 

One thing you will see over and over again in my comments is why the distinction between deaf and Deaf matters. The document confuses the two frequently and it creates some silliness and distortions, which we will discuss. Just so that everyone is on the same page as to what I mean by the two different terms (which as far as I can tell is the general meaning of the term from my readings over the years as well as interfacing with people in the Deaf community), a deaf individual is someone with a severe to profound hearing loss, 70 decibels and upwards. A Deaf individual is someone with a severe to profound hearing loss, primary language is ASL, and they attended a school for the deaf. Extra bonus points thrown in if a person is deaf genetically. That said, Deaf is also an identity and it is possible someone could be a member of that community without all of the criteria being satisfied, though I do think that person would have to at least be fluent in ASL In my case, my hearing loss is a congenital sensorineural bilateral hearing loss of 70-120 decibels. I also have a family history of hearing loss. However, I never learned ASL, and I never attended a school for the deaf. So, I am deaf Proud but not Deaf Proud. If you want to read a great book that is a manifesto for Deaf Proud, read Nyles Demarco’s Deaf Utopia: A Memoir.

 

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

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Issuing Authority

This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.

OLC Control Number

EEOC-NVTA-2014-1

Concise Display Name

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

Issue Date

01-24-2023

General Topics

ADA/GINA

Summary

This document provides information on how the ADA applies to job applicants and employees with hearing disabilities.

Citation

ADA, Rehabilitation Act, 29 CFR Part 1630

Document Applicant

Employees, Employers, Applicants, HR Practitioners

Previous Revision

Yes. This document revises and renames “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” originally issued 05-07-2014.

Disclaimer

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

Introduction

 

My thoughts: I am glad to see that the term “hearing impairment,” does not appear in this document. In the hearing loss community, we find this term offensive as there is nothing impaired about our hearing. Rather, our hearing just works differently than others (hearing aids, cochlears, or ASL). The terms to use in the hearing loss community are: Deaf, deaf, and hard of hearing.

 

This document, which is one of a series of question-and-answer documents addressing particular disabilities in the workplace,[1] explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. In particular, this document explains:

• when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures;
• what types of reasonable accommodations applicants or employees with hearing disabilities may need;
• how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
• how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA, a federal law that prohibits discrimination against qualified individuals with disabilities. The ADA provides that individuals with disabilities include those who have “a physical or mental impairment that substantially limits one or more major life activities . . . ,” have a record (or history) of a substantially limiting impairment, or are regarded as having such an impairment. This document uses ADA statutory terminology for its legal meaning and to refer inclusively to individuals who are deaf or hard of hearing, as well as those who have other hearing conditions, such as tinnitus and sensitivity to noise. [2]

Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Section 501 of the Rehabilitation Act provides similar protections related to federal employment. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and may provide protections in addition to those available under the ADA.[3]

My thoughts: you absolutely always need to keep in mind relevant state laws.

General Information about Hearing Conditions

Approximately 15 percent of American adults report some trouble hearing.[4] People with a variety of hearing conditions (including deafness, being hard of hearing, experiencing ringing in the ears, or having sensitivity to noise) may have ADA disabilities.

My thoughts: immediately in the document, the EEOC is using deafness with a small d and not realizing that deafness and Deaf are two very different things.

There are many different circumstances that may contribute to individuals becoming deaf, hard of hearing, or experiencing other hearing conditions (including childhood illnesses, pregnancy-related illnesses, injury, heredity, age, and excessive or prolonged exposure to noise).[5] These circumstances can affect the way such individuals experience sound, communicate with others, and view their hearing conditions.[6]  For example, some individuals who develop a hearing condition later in life may not use American Sign Language (ASL) or other common communication methods used by some with hearing conditions or may not use them as proficiently as individuals who are deaf or hard of hearing at birth or from a very young age.

Individuals who are deaf, hard of hearing, or have other hearing conditions can perform successfully on the job and, under the ADA, should not be denied opportunities because of stereotypical assumptions about those conditions. Some employers assume incorrectly that workers with hearing conditions 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 conditions can be effective and safe workers.

My thoughts: stereotypes of hearing loss are a big issue for those of us in the hearing loss community.

1. When does someone with a hearing condition have a disability within the meaning of the ADA?      

According to the ADA, the definition of “disability” is interpreted broadly in favor of expansive coverage.[7] Under the ADA, individuals with an impairment of hearing will meet the first prong of the ADA’s definition of disability (“actual disability”) if they can show that they are substantially limited in hearing or another major life activity (e.g., the major bodily function of special sense organs).[8] A determination of disability must ignore the positive effects of any mitigating measure that is used.[9]  For example, if someone uses a hearing aid or has a cochlear implant, the benefits of such a device would not be considered when determining if the impairment is substantially limiting.[10] People who are deaf should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of hearing.[11]

My thoughts: small d is used again. Regardless if you are deaf or Deaf, you are going to have an ADA protected disability because you have a physical impairment that substantially limits the major life activity of hearing.

Individuals with a history of an impairment will be covered under the second prong of the ADA definition of disability if they have a record of an impairment that substantially limited a major life activity in the past.[12] An applicant or employee may have a “record of” disability, for example, when the individual’s hearing has been corrected surgically. Finally, an individual is covered under the third (“regarded as”) prong of the ADA definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a hearing condition or because the employer believes the individual has an impairment of hearing, other than an impairment that is not both transitory and minor.

Obtaining, Using, and Disclosing Medical Information

The ADA limits an employer’s ability to ask applicants or employees questions related to disabilities (including hearing disabilities) and to conduct medical examinations. Different rules apply for these inquiries and exams at three distinct stages: pre-offer, post-offer, and during employment.

Job Applicants

Before an Offer of Employment Is Made

2. May an employer ask whether a job applicant has or had a hearing condition, or treatment related to a hearing condition, prior to making a job offer? 

No. An employer may not ask questions about an applicant’s medical condition[13] or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot ask an applicant such questions as:

• whether the applicant has ever had any medical procedures related to hearing (for example, whether the applicant has a cochlear implant);
• whether the applicant uses a hearing aid; or
• whether the applicant has any condition that affects the applicant’s hearing.

Of course, an employer may ask questions pertaining to the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation, such as:

• whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment;
• whether the applicant has good communication skills; or
• whether the applicant can meet legally mandated safety standards required to perform a job. (My thoughts: you most certainly can ask whether the applicant can meet legally mandated safety standards required to perform a job but those safety standards need to concern the job’s essential functions. Also, the term “legally mandated,” is a critical term because it refers to regulatory requirements and not just something that an employer comes up with). See Justice Thomas’s opinion in Albertson, Inc. v. Kirkingburg, here.

3. Does the ADA require an applicant to disclose a current or past disability before accepting a job offer?

No. The ADA does not require applicants to disclose that they have or had a hearing disability or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter). Some individuals with a hearing condition, however, choose to disclose or discuss their condition to dispel myths about it or to ensure that employers do not assume that the condition means the person is unable to do the job.

Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job (for example, specialized equipment, removal of a marginal function, or another type of job restructuring). A person with a hearing condition, however, may request an accommodation after becoming an employee even if they did not do so when applying for the job or after receiving the job offer.

My thoughts: after what goes on in a person with a disability’s mind in deciding whether to disclose a disability and seek accommodation, see this Federal Bar Association blog entry.

4. May an employer ask questions about an obvious hearing condition, or ask follow-up questions if an applicant discloses a non-obvious hearing condition?

No. An employer generally may not ask an applicant about obvious impairments. Nor may an employer ask an applicant who has voluntarily disclosed a hearing condition any questions about its nature or severity, when it began, or how the individual manages the condition. However, if an applicant has an obvious impairment or has voluntarily disclosed the existence of an impairment and the employer reasonably believes that the applicant will require an accommodation to complete the application process, or to perform the job because of the condition, the employer may ask whether the applicant will need an accommodation and what type. The employer must keep any information an applicant discloses about a medical condition confidential. (See “Keeping Medical Information Confidential,” below.)

 

My thoughts: This is very dangerous ground. If a person reveals voluntarily a disability during the course of the interview, asking whether the applicant will need an accommodation and what type can be done but needs to be done very carefully. The last thing you want to do as an employer is turn the interview into a question about whether the disability is being considered rather than the person’s abilities, i.e. whether the person can do the job with or without reasonable accommodations.

Example 1: Julie has a severe hearing condition in her right ear and is applying to the telephone sales department of a clothing company. Julie tells the employer of her hearing condition during the interview. The employer’s sales associates currently wear headsets with earpieces for the right ear. The employer may ask Julie during her interview if she would need a left-sided headset as an accommodation.

My thoughts: See my thoughts immediately above.

After an Offer of Employment Is Made

After making a job offer, an employer may ask questions about the applicant’s health (including questions about the applicant’s disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination). After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information. For example, if an employer asks all applicants post-offer about their general physical and mental health, it can ask individuals who disclose a particular illness, disease, or impairment for medical information or require them to have a medical examination related to the condition disclosed.

5. What may an employer do when it learns that an applicant has or had a hearing condition after the applicant has been offered a job but before starting work?

When an applicant discloses, after receiving a conditional job offer (italics in original), that the applicant has or had a hearing condition, an employer may ask the applicant additional questions, such as how long the individual has had the hearing condition; what, if any, hearing the applicant has; what specific hearing limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job. The employer also may send the applicant for a follow-up hearing or medical examination or ask the individual to submit medical documentation answering questions specifically designed to assess the applicant’s ability to perform the job’s functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage, when an employer may only ask an applicant who voluntarily discloses a disability or whose disability is obvious whether the individual needs an accommodation either in the application process or to perform the job.

An employer may not withdraw an offer from an applicant with a hearing disability if the individual is able to perform the essential functions of a job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation. (Below, “Accommodating Applicants and Employees” addresses reasonable accommodations (Questions 9 – 15) and “Concerns about Safety” addresses “direct threat” (Questions 16 and 17).)

Example 2: Lydia applies for a position as an aircraft mechanic. After receiving a job offer, she is given a physical examination. The examination reveals that she has a slight hearing loss in her left ear. Although Lydia worked as an aircraft mechanic in a noisy environment with the same level of hearing while she was a member of the military, the employer is concerned that Lydia will pose a risk to herself or others because she may not be able to hear sounds that might alert her to dangers in the work area, such as the presence of moving aircraft or other moving vehicles. The employer may not withdraw the job offer simply because it believes Lydia cannot work safely in a high-noise environment. The employer could only do so if it determined that Lydia’s hearing loss would result in a direct threat (that is, a significant risk of substantial harm to Lydia or to others in the workplace that cannot be eliminated or reduced through reasonable accommodation). The employer may seek additional information about Lydia’s hearing, including how her hearing loss affected her past work experience, to make this determination.

Employees

The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, actual performance is the best measure of ability to do the job.

6. When may an employer ask an employee if a hearing condition, or some other medical condition, may be causing the employee’s performance problems?

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as difficulties hearing, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.[14]

Example 3: Rupa wears a hearing aid to improve her bilateral, moderate hearing condition. She was recently promoted from an administrative position to sales associate for a cable company. The new position requires significantly more time on the phone interacting with customers. Although Rupa has received excellent reviews in the past, her latest review was unsatisfactory, citing many mistakes in the customer orders she records over the phone. The employer may lawfully ask Rupa if she has any difficulty hearing customers and, if so, whether she would benefit from an accommodation. Possible accommodations could be a captioned telephone that would allow Rupa to communicate verbally while receiving a real-time text relay of the conversation or providing technology that allows Rupa to stream a telephone conversation to her hearing aid.

My thoughts: I would not approach it this way. I would sit the employee down and say something along the lines of, “your performance in this position is not measuring up to what you have done in the past, is there something we can do to help make this better?” Doing it this way, invites the person with a disability to disclose and also allows the employer wiggle room to say that no disclosure was ever made if the person does not take the invitation to disclose. After all, an employer does not have to accommodate a disability it is not aware of. Doing it this way, also lessens the chances of a regarded as claim. Remember, it is up to the person with a disability to disclose that disability. All this said, while I recognize that many disabilities have stigmas associated with them, early disclosure invariably works better for the person with the disability. Finally, the guidance doesn’t define what is a, “moderate hearing condition.”

 

Example 4: An employee with a hearing disability has received below average evaluations for six months, starting when she was not selected for a vacant supervisory position. Moreover, the kinds of performance problems the employee is having—a significant increase in the number of late arrivals and typographical errors in written reports the employee routinely produces—cannot reasonably be attributed to a problem with the employee’s hearing. The employer may not ask for medical information about the employee’s hearing, but instead should counsel the employee about the performance problems or otherwise proceed as appropriate in accordance with its policies applicable to employee performance.

My thoughts: the reasonable accommodation process is all about accommodating a disability so that the person can get to the same starting line as a person without a disability. So, the performance and the disability need to be related. Finally, disability doesn’t trump performance issues.

7. Are there any other instances when an employer may ask an employee about the employee’s hearing?

Yes. An employer also may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it.

My thoughts: safely performing the essential functions of the job is not the issue as the EEOC covers later in the document. The issue is direct threat, which we have discussed many times in our blog, such as here, and is a high bar to meet.

In addition, an employer may ask an employee about the employee’s hearing to the extent the information is necessary:

• to support the employee’s request for a reasonable accommodation needed because of a hearing disability;
• to enable the employee to participate in a voluntary wellness program;[15] or
• to verify the employee’s use of sick leave related to a hearing condition if the employer requires all employees to submit a doctor’s note to justify their use of sick leave.[16]

Example 5: An employer maintains a leave policy requiring all employees who use sick leave for a medical appointment to submit a doctor’s note upon returning to work. Mark uses sick leave to attend an audiologist appointment to adjust his hearing aids. In accordance with its policy, the employer can require Mark to submit a doctor’s note for his absence; however, it may not require the note to include any additional information (such as the degree of Mark’s hearing loss, the strength of his hearing aids, or the results of the adjustment) if it is not needed to verify that Mark used his sick leave properly.

Keeping Medical Information Confidential

With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose that an employee has a hearing condition:

• to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions;
• to first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work;
• to individuals investigating compliance with the ADA and similar state and local laws; and
• where needed for workers’ compensation or insurance purposes (for example, to process a claim).

8. May an employer tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as working at home or working a modified schedule) that the co-worker is receiving a reasonable accommodation?

No. Telling coworkers that an employee is receiving an ADA reasonable accommodation amounts to a disclosure that the employee has a disability.[17] Rather than disclosing that the employee is receiving a reasonable accommodation, the employer may find it helpful to point out that many employee issues are personal and focus on the importance of maintaining the privacy of all employees.[18]

Employers may also be able to avoid many of these kinds of questions by training all employees on the requirements of equal employment laws, including the ADA, and by providing information about reasonable accommodation to all of their employees. Education on reasonable accommodation can be done in a number of ways, such as through written reasonable accommodation procedures, employee handbooks, staff meetings, and periodic online or in-person training. This kind of proactive approach may lead to fewer questions from employees who misperceive co-worker accommodations as “special treatment.”

Example 6: A large store does not provide its sales employees with smartphones. However, the employer does provide a deaf employee with one, as a reasonable accommodation, so that she can receive text messages instead of the numerous communications made over the public address system that she cannot hear, such as requests for sales representatives to report to different parts of the store to assist customers. If other employees ask why only she has a smartphone, the employer may not divulge any information about the impairment, including the fact that the smartphone is a reasonable accommodation.

Accommodating Applicants and Employees

The ADA requires employers to provide adjustments or modifications—called reasonable accommodations—to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability. Not all applicants or employees with a hearing condition will need an accommodation or require the same accommodations.

My thoughts: undue hardship can either be financial, which is incredibly difficult to show, or logistical (think title II and title III concept of fundamental alteration). The very last sentence of this paragraph is incredibly important as it is most certainly the case that not everyone with a hearing condition will need an accommodation or require the same accommodations. I see this mistake made all the time when it comes to hotels accommodating Deaf, deaf, and hard of hearing individuals.

9. What type of reasonable accommodations may applicants or employees with hearing disabilities need?

Some applicants or employees may need one or more of the following accommodations:

A sign language interpreter.

Example 7:  Based on Shawn’s online application and score on an initial assessment questionnaire, a manager contacts Shawn to schedule an in-person interview. Shawn requests that the employer provide an American Sign Language (ASL) interpreter for the interview. Absent undue hardship, the employer’s ADA obligation is to provide an ASL interpreter (in person or through a video remote interpreting service) for Shawn’s interview as a reasonable accommodation in the application process. (For more information about “reasonable accommodations” for applicants, see Question 14, below.)

 

Example 8: Simon has a hearing disability and works as a project manager for a regional telephone company. Simon is usually able to use his lip-reading ability to communicate individually with his co-workers. However, Simon occasionally requests a sign language interpreter for large-group conferences and meetings, because it is not possible for him to use lip-reading when people who are not in his line of sight are speaking. Simon’s employer would have to provide the sign language interpreter (in person or through a video remote interpreting service) as a reasonable accommodation, absent undue hardship. (For more information about “undue hardship,” see Question 12, below.)

My thoughts: example 8 unfortunately doesn’t make a lot of sense. The example talks about a person who needs an ASL interpreter for large group conferences but yet also relies on lipreading. It is possible that such a person exists but it would not happen frequently. A user of ASL who grows up on ASL where ASL is his or her or they first language is unlikely to be great at lipreading since ASL and English are not at all the same in their structure. It is also a stereotype that Deaf and deaf individuals are excellent lip readers. It is much more likely that a deaf or hard of hearing individual would lipread effectively than it is that a Deaf individual would lipread effectively. Finally, even the best lip reader, which I am one of as is my daughter, will only get 50% of what is said on the lips.

Assistive technology, including:

• Access to a video relay service or video remote interpreting service using equipment such as a videophone, computer, laptop, tablet, or smartphone.
• A hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants.
• Appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers).
• Enabling the streaming of sound directly from a device to hearing aids or cochlear implants.
• Utilizing accessibility features of mainstream technology (for example, using the captioning feature on virtual meeting platforms).
• A voice carry-over telephone, captioned telephone, text telephone, or TTY.[19]
• Equipment used for hearing protection to block noise or to protect hearing function, including equipment that can be used with hearing aids.
• Assistive software or applications (for example, for automated captioning, voice recognition, videoconferencing, or sound detection).

Example 9: Allen, who has a hearing disability, works as an information technology (IT) specialist with a small, internet-advertising firm. The IT specialist position requires frequent one-on-one meetings with the firm’s president. Because it will not cause an undue hardship, the firm accommodates Allen by acquiring voice recognition or automated captioning software for him to use in his meetings like concepts with the president. The software is programmed to transcribe spoken words into written electronic text.

My thoughts: I am not sure I understand the reference to voice recognition software, which I use all the time, but it doesn’t have anything to do with my hearing loss. With respect to automatic captioning software (which goes by the term ASR-automatic speech recognition), that can be very helpful. Keep in mind, that should technical terms or accents be involved, ASR will not be all that effective. In that situation, you may need to go with CART services.

• Assistive listening devices (ALDs).

Example 10: An employer has an annual all-employee meeting for more than 200 employees. Thelma, who has a hearing disability, requests the use of an ALD in the form of a personal FM system. Speakers would wear small microphones that would transmit amplified sounds directly to a receiver in Thelma’s ear. The employer determines that an ALD is a reasonable accommodation that will allow Thelma to participate in the meeting without causing an undue hardship.

My thoughts: depending upon the hearing devices used, assistive listening devices are going to vary considerably in terms of how successful they will be for a particular individual with a hearing loss.

• Augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice.
• Communication access real-time translation (CART), which translates voice into text at real-time speeds.

Example 11: Kendall works as an associate for an international consulting firm. Kendall has a hearing disability for which he uses a hearing aid and lip reading. His company sometimes conducts video-conferencing meetings with clients in other countries. During these meetings, Kendall finds it difficult to participate because the video feedback is not continuous. Kendall requests the use of remote CART services as an accommodation during international client meetings. The requested accommodation would translate the client’s spoken word on Kendall’s notebook computer monitor at real-time speed. This accommodation would allow Kendall to participate fully in the meetings and should be provided, absent undue hardship.

My thoughts: see my above comments about automatic speech recognition and CART.

Appropriate written memos and notes (especially used for brief, simple, or routine communications).

Note-taking assistance for those using CART services or sign language interpretation (to allow individuals using CART services or sign language interpretation to remain focused on translations).

Work area adjustments (for example, a desk away from a noisy area or near an emergency alarm with strobe lighting).

Example 12: Ann works as an accountant in a large firm located in a high-rise building. Ann has a large window in her office that faces the street-side of the building. She wears a hearing aid to mitigate her severe hearing condition. Throughout the workday many exterior noises (for example, police sirens, car horns, and street musicians) are amplified by Ann’s hearing aid and interfere with her ability to hear people speaking in her office. Ann requests, and her employer agrees, that moving her to a vacant interior office is a reasonable accommodation without causing an undue hardship.

My thoughts: digital hearing aids today are programmable. It is certainly possible that for many hearing aid users that a program could be developed by his or her or they audiologist so that background noise can be phased out.

Time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable.[20]

Example 13: Beth is deaf and requests leave as a reasonable accommodation to train a new hearing dog. Hearing dogs assist deaf and hard of hearing individuals by providing alerts to a variety of household and workplace sounds such as a telephone ring, door knock or doorbell, alarm clock, buzzer, name call, speaker announcement, and smoke or fire alarm. A hearing dog is trained to make physical contact and direct a person to the source of the sound. Under Beth’s employer’s leave policy, Beth does not have enough annual or sick leave to cover the requested absence. The employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship.

My thoughts: small d used here when both deaf and Deaf should have been used. As everyone knows, I have a hearing dog. Keep in mind, it is not unusual for hearing dogs to be home-based and not used outside the residence.

Altering an employee’s marginal (that is, non-essential) job functions.

Example 14: Manny, a librarian, is primarily responsible for cataloguing books, writing book summaries, and scheduling book tours. Recently, Manny has had to fill in as a desk librarian since the regular librarian is on vacation. Manny has a hearing disability and uses a hearing aid. Manny finds it difficult to hear patrons if there is any background noise. He asks to switch his front desk duties with another librarian who processes book orders transmitted over the phone or internet. Since working at the front desk is a minor function of Manny’s job, the employer should accommodate the change in job duties, absent undue hardship.

My thoughts: no two hearing losses are dealt with in the same way. The ADA requires an individualized analysis and that is especially important when dealing with hearing loss.

Reassignment to a vacant position.

Example 15: Sonny, a stocking clerk on the floor of a large grocery store, develops Ménière’s disease, which produces a loud roaring noise in his ears for long periods of time. It is difficult for him to hear customers and co-workers on the floor because of music and frequent announcements played over the store’s public address system and background noise in the store, particularly during busy periods. The store manager tried several unsuccessful accommodations. Upon request, the employer should reassign Sonny to a vacant position as a stocking clerk in the warehouse at the same location, absent undue hardship. The employee is qualified for the reassignment position and the warehouse is a quieter environment with fewer background sounds.

My thoughts: the jurisprudence involving mandatory reassignment, which we have discussed numerous times in our blog, such as here, is all over the place. The jurisprudence is consistent that reassignment is an option of last resort. After that, there can be considerable differences (compare the Seventh Circuit with the 11^th circuit).

Other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

Example 16: Maria is hired as a chemist for a pharmaceutical company. She communicates primarily through sign language and lip reading due to a hearing disability. Shortly after she is hired, she is required to attend a two-hour orientation meeting. The meeting includes a brief lecture session followed by a series of video vignettes to illustrate key concepts. As an accommodation, Maria requests a seat near the trainer, closed captioning during the video segments, and adequate lighting to allow her to read lips throughout the meeting. There is no undue hardship and the employer grants these reasonable accommodations to allow Maria to participate fully during the orientation session.

Although these are some examples of the types of accommodations commonly requested by employees with hearing conditions, other employees may need different changes or adjustments.[21]  Employers should ask the particular employee requesting an accommodation what is needed that will help the employee do the job. There also are extensive public and private resources to help employers identify reasonable accommodations. For example, the Job Accommodation Network (JAN) is a free, confidential service that provides information about many types of accommodations for applicants and employees with disabilities based on the needs of a given individual and workplace.

My thoughts: as I mentioned above, it would be unusual for an individual to communicate primarily through sign language and lip reading, though it could happen. Also, don’t forget about the interactive process.

 

10. How does an applicant or employee request a reasonable accommodation?

There are no “magic words” that a person has to use when requesting a reasonable accommodation. A person simply has to tell the employer that the individual needs an adjustment or change at work because of an impairment.

My thoughts: this is not the standard I would use. I agree that no magic words are required. However, the interactive process obligation is triggered the minute an employer knows that a disability exists that may need accommodations. Such notification can be communicated to an employer in a myriad of different ways. Be very cautious about taking the statement above that “a person simply have to tell the employer that the individual needs an adjustment or change at work because of an impairment,” literally or you will run yourself into magic words litigation. See also this blog entry.

A request for reasonable accommodation also can come from a family member, friend, health professional, or other representative on behalf of a person with a disability. If an employer requires more information about the disability and why an accommodation is needed, it should engage in an “interactive process”—a dialogue with the applicant or employee—to obtain information that will help the employer in handling the request.

Applicants and employees may find it helpful to discuss any necessary accommodations with the employer prior to starting a new position or assuming new job duties, even if an accommodation was provided during the job application process or in a previous position. Similarly, employers may, as a best practice, inform all new hires post-offer that they may request any needed accommodation in advance of their start date or once on the job.

My thoughts: it is always best for the employer to have the person with a disability lead when it comes to seeking accommodations.

Example 17: Liona has a hearing disability and is employed as an electrician. As a team leader, Liona is responsible for receiving her team’s list of daily work sites and any accompanying special instructions, traveling to the sites with her team, and directing the day’s work at each site. Liona receives the list of assignments and accompanying special instructions from the company owner during daily morning meetings attended by all of the team leaders. The special instructions are given orally. One morning, at the conclusion of a team leader meeting, Liona passes a note to the owner reminding the owner of her difficulty hearing and requesting that all special instructions for the team’s assignments be written down because she is having difficulty hearing them. Liona has requested a reasonable accommodation.

11. May an employer request documentation when an applicant or employee requests a reasonable accommodation?

Sometimes. When a person’s hearing condition is not obvious, the employer may ask the person to provide reasonable documentation about how the condition limits major life activities (that is, whether the person has a disability) and why a reasonable accommodation is needed. An employer, however, is entitled only to documentation sufficient to establish that the individual has a hearing disability and to explain why an accommodation is needed. A request for an individual’s entire medical record, for example, would be inappropriate, as it likely would include information about conditions other than the individual’s hearing.[22]

Example 18: Luíz, who has a hearing disability and communicates primarily through lip reading and speech, works as a programmer for an internet security firm. The firm acquires a new client and promotes Luíz to be the senior programmer responsible for all consultations regarding the internet security system design for the new client. Luíz’s new assignment requires frequent phone conversations and teleconference meetings that do not allow for the use of Luíz’s lip reading skills to aid in his verbal comprehension. As a result, Luíz’s audiologist recommends, and Luíz requests, the use of a voice carry-over phone, which would provide an almost real-time text relay of the client’s speech and also allow the client to hear Luíz. Because Luíz’s impairment is not an obvious disability, his employer may lawfully request medical documentation to verify his disability.

My thoughts: this “obvious,” piece comes up quite a bit. For example, in the service animal area, the DOJ regulations make this a critical question before you can make two inquiries to establish whether the animal is a service animal. In the employment context, obviousness drives the amount of documentation you can request and is not a prerequisite before you can make any request at all.

 

12. Does an employer have to grant every request for a reasonable accommodation?

No. An employer does not have to provide an accommodation if doing so would be an undue hardship. Undue hardship means that providing the reasonable accommodation will result in significant difficulty or expense. An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property). Nor do employers have to provide employees with personal use items, such as hearing aids or other devices that are used both on and off the job.

My thoughts: personal devices are not a reasonable accommodation obligation of the employer.

If more than one accommodation would be effective, the employee’s preference should be given primary consideration, although the employer is not required to provide the employee’s first choice of reasonable accommodation. If a requested accommodation is too difficult or expensive, an employer may choose to provide an easier or less costly accommodation as long as it is effective in meeting the employee’s needs.

My thoughts: “too difficult or expensive,” is not the standard. The standard is undue hardship, which can be either logistical or financial. With respect to financial, I can literally count on one hand the number of cases that I have read over the years that found a financial undue hardship.

Example 19: An employee with a bilateral hearing disability requests use of communication access real-time translation (CART) for an upcoming training. In place of the CART device, the employer suggests an assistive listening device (ALD) because it is less expensive than CART. Twelve managers and supervisors are scheduled to take the training in a conference room at the employer’s offices. Much of the information will be presented in a lecture format, accompanied by slides with printed information. The size of the room, the number of participants in the training, and the format of the training make it possible for the employee to use a portable assistive listening system effectively. The employer may, therefore, provide an ALD instead of CART under these circumstances.

My thoughts: if there is ever an example why understanding the distinction between Deaf, deaf, and hard of hearing matters, it is this example. The problem is that we have no idea of the severity of this employee’s bilateral hearing disability. The severity of the hearing loss matters a great deal with respect to what accommodation is requested. Depending on the answer to that question, it is entirely possible that an assistive listening device will not work at all for a particular individual in this context. To suggest that it would ignores how hearing loss actually works among individuals.

 

Example 20: A deaf employee requests a sign language interpreter for regular staff meetings. The employer suggests that a co-worker could take notes and share them with the deaf employee or that a summary of the meeting could be prepared. These alternatives are not effective because they do not allow the deaf employee to ask questions and participate in discussions during the meetings as other employees do. Absent undue hardship, the employer must provide a sign language interpreter (in person or through a video remote interpreting service) for the meetings.

My thoughts: small d. Also, the EEOC in this example references the need for communication to be effective. The EEOC does not contain any effective communication rules. As we have discussed many times in the blog, the DOJ does contain effective communication rules for title II entities and title III entities. As we have also discussed, such as here, the effective communication rules are not the same for title II entities and four title III entities. All this said, an employee with a hearing loss is inevitably dealing with effective communication, so as a preventive law matter, the employer may very well want to consider utilizing the effective communication rules of title II for guidance. Taking that approach will likely prevent a lot of successful lawsuits against the company.

13. May an employer be required to provide more than one accommodation for the same applicant or employee?

Yes. The duty to provide a reasonable accommodation is an ongoing one. Although some applicants or employees with a disability may require only one reasonable accommodation, others may need more than one. An employer must consider each request for a reasonable accommodation and determine whether it would be effective and whether providing it would pose an undue hardship.

Example 21: A deaf employee can communicate effectively with her supervisor by lip-reading and with written notes. The employee wants to attend a three-day training program that will involve extensive communication between participants and the instructor and among participants themselves. The employee requests CART— communication access real-time translation—for the training. The employer may explore whether another form of reasonable accommodation—for example, a sign language interpreter—would be effective. But, the employer must provide the CART service or another effective form of reasonable accommodation, absent undue hardship, since lip-reading and exchanging occasional notes will not enable the employee to participate fully in the training.

My thoughts: small d. It is extraordinarily hard for me to believe that effective communication could ever occur with a Deaf employee through the use of notes and lipreading. See this blog entry for example. It is not unusual at all for a Deaf, culturally deaf individual, to not read beyond a fourth grade reading level It is far more likely that the effective communication in this situation will be done through an ASL interpreter. Finally, videoconferencing platforms have come a long way with respect to accommodating those in the hearing loss community. For example, the automatic speech recognition has gotten quite good, though its accuracy may vary from platform to platform. Also, the platforms are now including the ability of ASL interpreters to have their own window on the call. While the example uses a small d, I still find it extraordinarily hard for me to believe that effective communication for a deaf individual could be done this way. Finally, see my thoughts immediately above with respect to the DOJ effective communication rules and how they can be used as a guideline.

14. Does an employer have to provide a reasonable accommodation to an applicant with a disability during the application process even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job?

Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless the employer can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.[23]

My thoughts: I completely agree with this. However, there is some awful case law out there that we have discussed in the blog, such as here, that might disagree with this.

Example 22: An employer is impressed with an applicant’s resume and contacts the individual to come in for an interview. The applicant, who is deaf, requests a sign language interpreter for the interview. The employer cancels the interview and refuses to consider this applicant further because it believes it would have to hire a full-time interpreter. The employer has violated the ADA. The employer should have proceeded with the interview, using a sign language interpreter (in person or through a video remote interpreting service), absent undue hardship, and at the interview inquired to what extent the individual would need a sign language interpreter to perform any essential functions requiring communication with other people.

By contrast, if the employer provides a requested sign language interpreter and the applicant fails a test that is a requirement of the application process, and the poor performance is unrelated to the deafness, the employer does not have to provide any further reasonable accommodations for this individual because the individual is no longer qualified to continue with the application process.[24]

My thoughts: small d when capital D is likely intended. We discussed this hypothetical in an actual case in this blog entry where Johns Hopkins University lost big time. Also, be advised that the Deaf community absolutely cannot stand video remote interpreting services.  

15. What kinds of reasonable accommodations are related to the benefits and privileges of employment?

Reasonable accommodations related to the benefits and privileges of employment include accommodations that are necessary to provide individuals with disabilities access to facilities or portions of facilities to which all employees are granted access (for example, employee break rooms and cafeterias), access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.

My thoughts: the reasonable accommodation obligation absolutely extend to the benefits and privileges of employment. See this case for example, which we discussed here.

Example 23: Karin, who is deaf, works as an associate in a large investment firm. Every December, the partner in charge of the team for which Karin works holds a party at his residence for all of the team’s members and a number of the firm’s clients. Upon Karin’s request, her employer provides her a sign language interpreter to allow Karin to fully participate in the social event.

My thoughts: this example obviously concerns an individual who is Deaf and not deaf.

An employer will not be excused from providing an employee with a disability with a necessary accommodation because the employer has contracted with another entity to conduct the event.

Example 24: An employer offers its employees a training course on organization and time management provided by a local company with which the employer has contracted. An employee who is deaf wants to take the course and asks for CART services or a sign language interpreter. The employer claims that the company conducting the training is responsible for providing what the deaf employee needs, but the company responds that the responsibility is the employer’s. Even if the company conducting the training has an obligation, under Title III of the ADA,[25] to provide “auxiliary aids and services,” which could include CART services and sign language interpreters, this fact would not alter the employer’s obligation to provide the employee with a reasonable accommodation for the training.[26]

My thoughts: in other words, what the EEOC is saying here is that the ADA is a nondelegable duty, which we discussed here.

Concerns About Safety

When it comes to safety concerns, an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing conditions. Instead, the employer should evaluate an individual on the individual’s skills, knowledge, experience, and how the hearing condition affects the individual.

16. When may an employer refuse to hire, terminate, or temporarily restrict the duties of a person who has or had a hearing disability because of safety concerns?

An employer only may exclude an individual with a hearing disability from a job for safety reasons when the individual poses a direct threat. A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.[27] An employer should conduct an individualized “direct threat” assessment of an individual’s present ability to safely perform the essential functions of the job.[28] This determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In making a direct threat assessment, the employer must consider:

(1)   the duration of the risk;

(2)   the nature and severity of the potential harm;

(3)   the likelihood that the potential harm will occur; and

(4)   the imminence of the potential harm.[29]

The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.[30]

My thoughts: as you can see from #16, direct threat and safety are not at all the same things.

Example 25: A school district denies an applicant with a hearing disability a job as a school bus driver for elementary school students, believing that she will not be able to drive safely and will not be able to monitor students, especially in the event of a medical or other emergency. The applicant has a clean driving record and has previously performed jobs transporting elderly patients by van to doctor’s appointments and social events. Based on past experiences with accommodations, the applicant could monitor students effectively—and without compromising her driving—if an additional mirror highlighting the rear of the bus were installed. The mirror, placed above the driver, would allow her to better monitor students whose conversations she may not be able to hear or understand as well as those students located in the front of the bus. Under these circumstances, the school district cannot demonstrate that this applicant would pose a direct threat to the safety of others, and its refusal to hire her would violate the ADA.[31]

 

Example 26: An employee with a hearing disability requests training to operate a forklift at a large hardware store. For safety reasons, the employer requires that forklift operators be able to communicate with a spotter employee while operating the machine. The employee and the employer contact the JAN, which suggests that they explore whether the employee could be accommodated using a visual alert on a smartwatch, a vibrating pager with a light signal, or a smartphone or tablet on a dashboard mount to allow communication with the spotter. If the employer determines that there is a reasonable accommodation that does not pose an undue hardship, based on the facts of the specific work setting and tasks, it must provide the accommodation and allow the employee training on the forklift. If no reasonable accommodation can be provided absent undue hardship, the employer may deny the employee training on a forklift.[32]

My thoughts: JAN is a great resource.

17. What should an employer do when another federal law prohibits it from hiring individuals with a hearing condition for particular positions?

If a federal law prohibits an employer from hiring a person with a hearing condition for a particular position, the employer is not liable under the ADA. The employer should be certain, however, that compliance with the law actually is required, not voluntary. The employer also should be sure that the law does not contain any exceptions or waivers.

Example 27: Terry has a severe hearing condition that is slightly improved by her cochlear implant. She applies for a position driving large trucks. These positions are subject to hearing requirements and other standards enforced by the Department of Transportation (DOT), and Terry has not obtained an exemption from the DOT from its hearing requirements. The employer may rely on DOT’s hearing requirement in denying Terry employment. However, the employer may not rely on the DOT hearing requirement to exclude Terry from a position driving smaller trucks, which are not subject to DOT’s standards. Instead, the employer would have to establish that Terry would pose a direct threat, within the meaning of the ADA, if it denied her a position driving smaller trucks because of a hearing disability.

My thoughts: see Justice Thomas’s opinion in Kirkingberg v. Albertsons, Inc., here.

Harassment

The ADA prohibits harassment, or offensive conduct, based on disability just as other federal laws prohibit harassment based on race, sex, color, national origin, religion, age, and genetic information. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Example 28: Leonard works as a stocker at a local electronics store. Leonard lost his hearing two years ago as the result of a rare and debilitating illness. Since Leonard’s recovery and return to work, his co-workers have constantly taunted him about his condition and recklessly driven the forklift near him while yelling for him to move. The employees know that Leonard cannot hear their warnings and often laugh at Leonard’s startled reaction when he sees the forklift approaching him. Leonard complains to his supervisor in accordance with his employer’s anti-harassment policy. The employer must promptly investigate and address the harassing behavior.

My thought: absolutely!

18. What should employers do to prevent and correct harassment?

Employers should make clear that they will not tolerate harassment based on disability or on any other protected basis. This can be done in a number of ways, such as through a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager. Finally, the employer should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action. For more information on the standards governing harassment under all of the EEO laws, see EEOC’s Harassment webpage.

Retaliation and Interference

The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an investigation, proceeding, or litigation related to a charge of employment discrimination. It is also unlawful for an employer to retaliate against someone for requesting a reasonable accommodation, or to interfere with the exercise of ADA rights. Persons who believe that they have been retaliated against or subjected to ADA interference may file a charge as described below.

My thoughts: don’t forget about interference, which we discussed here.

How to File a Charge of Employment Discrimination

Against Private Employers and State/Local Governments

If you believe that your employment-related ADA rights may have been violated, the EEOC can help you decide what to do next. For example, if the employer refuses to consider your request for a reasonable accommodation to complete an application process or perform your job, and if you think you would be able to do the job with a reasonable accommodation, you might consider filing a charge of discrimination with the EEOC. A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws.

If you file a charge of discrimination, the EEOC will conduct an investigation. Mediation, which is an informal and confidential way for people to resolve disputes with the help of a neutral mediator, may also be available. Because you must file an EEOC charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is covered by a state or local employment discrimination law), it is best to begin the process early. It is unlawful for an employer to retaliate against you for contacting the EEOC or filing a charge.

If you would like to begin the process of filing a charge, go to our EEOC Online Public Portal,  contact your local EEOC office (contact information available on the local office page), or contact us by phone at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone).

My thoughts: with respect to state or local governments, you absolutely want to file with the EEOC. Keep in mind, that should the weight of the federal government come in, it will be the DOJ and not the EEOC that will prosecute a case against the state or local governmental entity.

Against the Federal Government

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by contacting the office responsible for the agency’s EEO complaints program. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or though ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late). If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation. When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred. A detailed description of the federal sector EEO process is available on our website.

If you require language assistance (such as a sign language interpreter or assistive technology) to file a complaint, participate in an EEOC investigation, or as part of an EEOC hearing process, you should submit a request to your agency for assistance. It will then be the responsibility of the responding agency to provide needed language assistance.

This information is not new policy; rather, this document applies principles already established in the ADA’s statutory and regulatory provisions as well as previously issued guidance. The contents of this publication do not have the force and effect of law and are not meant to bind the public in any way. This publication is intended only to provide clarity to the public regarding existing requirements under the law. As with any charge of discrimination filed with the EEOC, the Commission will evaluate alleged ADA violations based on the facts and circumstances of the particular matter and applicable legal principles.

My thoughts:The Trump administration started this disclaimer. It is absolutely accurate in light of the case we discussed here, Kisor v. Wilkie.

 

[1] See EEOC Disability-Related Publications and People with Certain Types of Health Conditions/Disabilities.

[2] The ADA uses terminology that has specific legal meanings. Two central ADA terms are “disability” and “impairment.”

On the issue of self-identification, the National Association of the Deaf (NAD) states that:

The deaf and hard of hearing community is diverse.  There are variations in how a person becomes deaf or hard of hearing, level of hearing, age of onset, educational background, communication methods, and cultural identity.  How people “label” or identify themselves is personal and may reflect identification with the deaf and hard of hearing community, the degree to which they can hear, or the relative age of onset.

See National Association of the Deaf (NAD), Community and Culture–Frequently Asked Questions, (last accessed January 17, 2023).

In addition, NAD addresses particular labels that often are favored or disfavored. In this document, EEOC does not use the terms that NAD indicates are most often disfavored, including the term “hearing impaired.” However, to ensure consistency with the ADA definition of disability, which incorporates references to physical “impairment,” this document uses the terms “disability” and “impairment” as necessary as a legal matter.

[3] For example, disability laws in California, Pennsylvania, New Jersey, New York, and a number of other states apply to employers with fewer than 15 employees.

[4] See National Institute on Deafness and Other Communication Disorders, Quick Statistics About Hearing (citing to CDC report) (last accessed January 17, 2023).

[5] See Note 2, above.

[6] Id.

[7] The definition of “disability” is construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA, and the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. 29 C.F.R. § 1630.1(c)(4).

[8] See 29 C.F.R. §1630.2(i)(1)(ii).

[9] 42 U.S.C. § 12102(4)(E).

[10] Id.; 29 C.F.R. § 1630.2(j)(5)(i).

[11] 29 CFR 1630.2(j)(3)(iii).

[12] 29 C.F.R. § 1630.2(k).

[13] Federal contractors are required under 41 C.F.R. § 60-741.42, a regulation issued by the Office of Federal Contract Compliance Programs (OFCCP), to invite applicants to voluntarily self-identify as persons with disabilities for affirmative action purposes. The ADA prohibition on asking applicants about medical conditions at the pre-offer stage does not prevent federal contractors from complying with the OFCCP’s regulation. See Letter from Peggy R. Mastroianni, EEOC Legal Counsel, to Patricia A. Shiu, Director of OFCCP (Aug. 8, 2013)(last accessed January 18, 2023).

[14] An employer also may ask an employee about the employee’s hearing or send the employee for a medical examination when it reasonably believes the employee may pose a direct threat because of an impairment. See “Concerns About Safety.”

[15] The ADA allows employers to conduct voluntary medical examinations and activities, including obtaining voluntary medical histories, which are part of an employee wellness program (such as a smoking cessation program), as long as any medical records (including, for example, the results of any diagnostic tests) acquired as part of the program are kept confidential. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA at Question 22.

[16] An employer also may ask an employee for periodic updates on the employee’s condition if the employee has taken leave and has not provided an exact or fairly specific date of return or has requested leave in addition to that already granted. Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health without violating the ADA.

[17] An employer’s attempt to indirectly advise an employee’s colleagues that the employee is receiving a reasonable accommodation (by, for example, telling an employee’s colleagues that the ADA requires the employer to make changes for that employee) may also amount to a disclosure that the employee has a disability.

[18] See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA at Question 42.

[19] A text telephone or teletypewriter (TTY) allows a telephone user to send typed messages to another caller and to receive typewritten messages from the caller either directly (if the caller is also using a TTY) or through a telephone relay service (TRS) operator. A voice carry-over telephone allows someone with a hearing condition to communicate orally over the telephone and to receive text communications from the other caller that are transcribed by a TRS operator. A captioned telephone allows users with hearing conditions to receive communications over the telephone orally while receiving an almost simultaneous text translation.

[20] For more information regarding an employer’s responsibility to provide leave for covered individuals, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Questions 17 – 21 (2002); Employer-Provided Leave and the Americans with Disabilities Act (2016).

[21] For information on specific accommodation ideas for different types of limitations, see the Job Accommodation Network’s Searchable Online Accommodation Resource (SOAR)(last accessed January 17, 2023).  JAN can also be reached at 800-526-7234 (Voice) or 877-781-9403 (TTY).

[22] Requests for documentation to support a request for accommodation may violate Title II of the Genetic Information Nondiscrimination Act (GINA) where they are likely to result in the acquisition of genetic information, including family medical history. 29 C.F.R. §1635.8(a). For this reason, employers may want to include a warning in the request for documentation that the employee or the employee’s doctor should not provide genetic information. Id. at 1635.8(b)(1)(i)(B).

[23] Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Question 13.

[24] Id. at Question 13, Examples A & B.

[25] In an effort to eliminate discrimination against individuals with disabilities, Title III of the ADA requires businesses and non-profit organizations that are public accommodations to comply with basic nondiscrimination and building accessibility requirements, provide reasonable modifications to policies and practices, and supply auxiliary aids (for example, assistive listening devices) to ensure effective communication with persons with disabilities. For more information on the requirements of Title III of the ADA, visit the website for the U.S. Department of Justice, Civil Rights Division, Disability Rights Section (last accessed January 17, 2023).

[26] An employer should include, as part of any contract with an entity that conducts training, provisions that allocate responsibility for providing reasonable accommodations. This can help to avoid conflicts or confusion that could arise and result in an employee being denied a training opportunity. An employer should also remember, however, that it remains responsible for providing a reasonable accommodation that an employee needs to take advantage of a training opportunity, regardless of how that responsibility has been allocated in the contract.

[27] 29 C.F.R. § 1630.2(r).

[28] Id.

[29] Id.

[30] Id.

[31] See Rizzo v. Children’s World Learning Center, 213 F.3d 209 (5th Cir. 2000).

[32] See Job Accommodation Network’s Accommodation and Compliance: Hearing Impairment  (last accessed January 17, 2023), describing a process for determining if a particular accommodation would meet employer and employee needs and providing links to specific accommodation ideas for different types of hearing conditions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

you have a blog entry all ready to go in your mind. You are even rehearsing the outline of it in your mind. However, something then intervenes and you feel compelled to blog about something else. This is exactly what happened to me for the blog entry of this week. I had been outlining in my mind how I would approach the oral argument in Perez v. Sturgis Public Schools. There is also a Sixth Circuit case, Doe v. Knox County Board of Education, that goes along with that. However, yesterday the EEOC issued a guidance on hearing disabilities in the workplace and the ADA, here. As a deaf proud person, I had no choice but to blog on that guidance. As I have done before when it comes to guidances, I am going to cut and paste the whole thing. Whenever I have comments on a particular section, I will just put in the term “my thoughts,” so y’all know when I am talking. Also, that paragraph will be in italics. Finally, if “my thoughts,” doesn’t appear at the end of the section, that means I don’t see any flags in that section.

 

One thing you will see over and over again in my comments is why the distinction between deaf and Deaf matters. The document confuses the two frequently and it creates some silliness and distortions, which we will discuss. Just so that everyone is on the same page as to what I mean by the two different terms (which as far as I can tell is the general meaning of the term from my readings over the years as well as interfacing with people in the Deaf community), a deaf individual is someone with a severe to profound hearing loss, 70 decibels and upwards. A Deaf individual is someone with a severe to profound hearing loss, primary language is ASL, and they attended a school for the deaf. Extra bonus points thrown in if a person is deaf genetically. That said, Deaf is also an identity and it is possible someone could be a member of that community without all of the criteria being satisfied, though I do think that person would have to at least be fluent in ASL In my case, my hearing loss is a congenital sensorineural bilateral hearing loss of 70-120 decibels. I also have a family history of hearing loss. However, I never learned ASL, and I never attended a school for the deaf. So, I am deaf Proud but not Deaf Proud. If you want to read a great book that is a manifesto for Deaf Proud, read Nyles Demarco’s Deaf Utopia: A Memoir.

 

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

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Issuing Authority

This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.

OLC Control Number

EEOC-NVTA-2014-1

Concise Display Name

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

Issue Date

01-24-2023

General Topics

ADA/GINA

Summary

This document provides information on how the ADA applies to job applicants and employees with hearing disabilities.

Citation

ADA, Rehabilitation Act, 29 CFR Part 1630

Document Applicant

Employees, Employers, Applicants, HR Practitioners

Previous Revision

Yes. This document revises and renames “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” originally issued 05-07-2014.

Disclaimer

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

Introduction

 

My thoughts: I am glad to see that the term “hearing impairment,” does not appear in this document. In the hearing loss community, we find this term offensive as there is nothing impaired about our hearing. Rather, our hearing just works differently than others (hearing aids, cochlears, or ASL). The terms to use in the hearing loss community are: Deaf, deaf, and hard of hearing.

 

This document, which is one of a series of question-and-answer documents addressing particular disabilities in the workplace,[1] explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. In particular, this document explains:

• when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures;
• what types of reasonable accommodations applicants or employees with hearing disabilities may need;
• how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
• how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA, a federal law that prohibits discrimination against qualified individuals with disabilities. The ADA provides that individuals with disabilities include those who have “a physical or mental impairment that substantially limits one or more major life activities . . . ,” have a record (or history) of a substantially limiting impairment, or are regarded as having such an impairment. This document uses ADA statutory terminology for its legal meaning and to refer inclusively to individuals who are deaf or hard of hearing, as well as those who have other hearing conditions, such as tinnitus and sensitivity to noise. [2]

Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Section 501 of the Rehabilitation Act provides similar protections related to federal employment. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and may provide protections in addition to those available under the ADA.[3]

My thoughts: you absolutely always need to keep in mind relevant state laws.

General Information about Hearing Conditions

Approximately 15 percent of American adults report some trouble hearing.[4] People with a variety of hearing conditions (including deafness, being hard of hearing, experiencing ringing in the ears, or having sensitivity to noise) may have ADA disabilities.

My thoughts: immediately in the document, the EEOC is using deafness with a small d and not realizing that deafness and Deaf are two very different things.

There are many different circumstances that may contribute to individuals becoming deaf, hard of hearing, or experiencing other hearing conditions (including childhood illnesses, pregnancy-related illnesses, injury, heredity, age, and excessive or prolonged exposure to noise).[5] These circumstances can affect the way such individuals experience sound, communicate with others, and view their hearing conditions.[6]  For example, some individuals who develop a hearing condition later in life may not use American Sign Language (ASL) or other common communication methods used by some with hearing conditions or may not use them as proficiently as individuals who are deaf or hard of hearing at birth or from a very young age.

Individuals who are deaf, hard of hearing, or have other hearing conditions can perform successfully on the job and, under the ADA, should not be denied opportunities because of stereotypical assumptions about those conditions. Some employers assume incorrectly that workers with hearing conditions 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 conditions can be effective and safe workers.

My thoughts: stereotypes of hearing loss are a big issue for those of us in the hearing loss community.

1. When does someone with a hearing condition have a disability within the meaning of the ADA?      

According to the ADA, the definition of “disability” is interpreted broadly in favor of expansive coverage.[7] Under the ADA, individuals with an impairment of hearing will meet the first prong of the ADA’s definition of disability (“actual disability”) if they can show that they are substantially limited in hearing or another major life activity (e.g., the major bodily function of special sense organs).[8] A determination of disability must ignore the positive effects of any mitigating measure that is used.[9]  For example, if someone uses a hearing aid or has a cochlear implant, the benefits of such a device would not be considered when determining if the impairment is substantially limiting.[10] People who are deaf should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of hearing.[11]

My thoughts: small d is used again. Regardless if you are deaf or Deaf, you are going to have an ADA protected disability because you have a physical impairment that substantially limits the major life activity of hearing.

Individuals with a history of an impairment will be covered under the second prong of the ADA definition of disability if they have a record of an impairment that substantially limited a major life activity in the past.[12] An applicant or employee may have a “record of” disability, for example, when the individual’s hearing has been corrected surgically. Finally, an individual is covered under the third (“regarded as”) prong of the ADA definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a hearing condition or because the employer believes the individual has an impairment of hearing, other than an impairment that is not both transitory and minor.

Obtaining, Using, and Disclosing Medical Information

The ADA limits an employer’s ability to ask applicants or employees questions related to disabilities (including hearing disabilities) and to conduct medical examinations. Different rules apply for these inquiries and exams at three distinct stages: pre-offer, post-offer, and during employment.

Job Applicants

Before an Offer of Employment Is Made

2. May an employer ask whether a job applicant has or had a hearing condition, or treatment related to a hearing condition, prior to making a job offer? 

No. An employer may not ask questions about an applicant’s medical condition[13] or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot ask an applicant such questions as:

• whether the applicant has ever had any medical procedures related to hearing (for example, whether the applicant has a cochlear implant);
• whether the applicant uses a hearing aid; or
• whether the applicant has any condition that affects the applicant’s hearing.

Of course, an employer may ask questions pertaining to the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation, such as:

• whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment;
• whether the applicant has good communication skills; or
• whether the applicant can meet legally mandated safety standards required to perform a job. (My thoughts: you most certainly can ask whether the applicant can meet legally mandated safety standards required to perform a job but those safety standards need to concern the job’s essential functions. Also, the term “legally mandated,” is a critical term because it refers to regulatory requirements and not just something that an employer comes up with). See Justice Thomas’s opinion in Albertson, Inc. v. Kirkingburg, here.

3. Does the ADA require an applicant to disclose a current or past disability before accepting a job offer?

No. The ADA does not require applicants to disclose that they have or had a hearing disability or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter). Some individuals with a hearing condition, however, choose to disclose or discuss their condition to dispel myths about it or to ensure that employers do not assume that the condition means the person is unable to do the job.

Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job (for example, specialized equipment, removal of a marginal function, or another type of job restructuring). A person with a hearing condition, however, may request an accommodation after becoming an employee even if they did not do so when applying for the job or after receiving the job offer.

My thoughts: after what goes on in a person with a disability’s mind in deciding whether to disclose a disability and seek accommodation, see this Federal Bar Association blog entry.

4. May an employer ask questions about an obvious hearing condition, or ask follow-up questions if an applicant discloses a non-obvious hearing condition?

No. An employer generally may not ask an applicant about obvious impairments. Nor may an employer ask an applicant who has voluntarily disclosed a hearing condition any questions about its nature or severity, when it began, or how the individual manages the condition. However, if an applicant has an obvious impairment or has voluntarily disclosed the existence of an impairment and the employer reasonably believes that the applicant will require an accommodation to complete the application process, or to perform the job because of the condition, the employer may ask whether the applicant will need an accommodation and what type. The employer must keep any information an applicant discloses about a medical condition confidential. (See “Keeping Medical Information Confidential,” below.)

 

My thoughts: This is very dangerous ground. If a person reveals voluntarily a disability during the course of the interview, asking whether the applicant will need an accommodation and what type can be done but needs to be done very carefully. The last thing you want to do as an employer is turn the interview into a question about whether the disability is being considered rather than the person’s abilities, i.e. whether the person can do the job with or without reasonable accommodations.

Example 1: Julie has a severe hearing condition in her right ear and is applying to the telephone sales department of a clothing company. Julie tells the employer of her hearing condition during the interview. The employer’s sales associates currently wear headsets with earpieces for the right ear. The employer may ask Julie during her interview if she would need a left-sided headset as an accommodation.

My thoughts: See my thoughts immediately above.

After an Offer of Employment Is Made

After making a job offer, an employer may ask questions about the applicant’s health (including questions about the applicant’s disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination). After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information. For example, if an employer asks all applicants post-offer about their general physical and mental health, it can ask individuals who disclose a particular illness, disease, or impairment for medical information or require them to have a medical examination related to the condition disclosed.

5. What may an employer do when it learns that an applicant has or had a hearing condition after the applicant has been offered a job but before starting work?

When an applicant discloses, after receiving a conditional job offer (italics in original), that the applicant has or had a hearing condition, an employer may ask the applicant additional questions, such as how long the individual has had the hearing condition; what, if any, hearing the applicant has; what specific hearing limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job. The employer also may send the applicant for a follow-up hearing or medical examination or ask the individual to submit medical documentation answering questions specifically designed to assess the applicant’s ability to perform the job’s functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage, when an employer may only ask an applicant who voluntarily discloses a disability or whose disability is obvious whether the individual needs an accommodation either in the application process or to perform the job.

An employer may not withdraw an offer from an applicant with a hearing disability if the individual is able to perform the essential functions of a job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation. (Below, “Accommodating Applicants and Employees” addresses reasonable accommodations (Questions 9 – 15) and “Concerns about Safety” addresses “direct threat” (Questions 16 and 17).)

Example 2: Lydia applies for a position as an aircraft mechanic. After receiving a job offer, she is given a physical examination. The examination reveals that she has a slight hearing loss in her left ear. Although Lydia worked as an aircraft mechanic in a noisy environment with the same level of hearing while she was a member of the military, the employer is concerned that Lydia will pose a risk to herself or others because she may not be able to hear sounds that might alert her to dangers in the work area, such as the presence of moving aircraft or other moving vehicles. The employer may not withdraw the job offer simply because it believes Lydia cannot work safely in a high-noise environment. The employer could only do so if it determined that Lydia’s hearing loss would result in a direct threat (that is, a significant risk of substantial harm to Lydia or to others in the workplace that cannot be eliminated or reduced through reasonable accommodation). The employer may seek additional information about Lydia’s hearing, including how her hearing loss affected her past work experience, to make this determination.

Employees

The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, actual performance is the best measure of ability to do the job.

6. When may an employer ask an employee if a hearing condition, or some other medical condition, may be causing the employee’s performance problems?

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as difficulties hearing, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.[14]

Example 3: Rupa wears a hearing aid to improve her bilateral, moderate hearing condition. She was recently promoted from an administrative position to sales associate for a cable company. The new position requires significantly more time on the phone interacting with customers. Although Rupa has received excellent reviews in the past, her latest review was unsatisfactory, citing many mistakes in the customer orders she records over the phone. The employer may lawfully ask Rupa if she has any difficulty hearing customers and, if so, whether she would benefit from an accommodation. Possible accommodations could be a captioned telephone that would allow Rupa to communicate verbally while receiving a real-time text relay of the conversation or providing technology that allows Rupa to stream a telephone conversation to her hearing aid.

My thoughts: I would not approach it this way. I would sit the employee down and say something along the lines of, “your performance in this position is not measuring up to what you have done in the past, is there something we can do to help make this better?” Doing it this way, invites the person with a disability to disclose and also allows the employer wiggle room to say that no disclosure was ever made if the person does not take the invitation to disclose. After all, an employer does not have to accommodate a disability it is not aware of. Doing it this way, also lessens the chances of a regarded as claim. Remember, it is up to the person with a disability to disclose that disability. All this said, while I recognize that many disabilities have stigmas associated with them, early disclosure invariably works better for the person with the disability. Finally, the guidance doesn’t define what is a, “moderate hearing condition.”

 

Example 4: An employee with a hearing disability has received below average evaluations for six months, starting when she was not selected for a vacant supervisory position. Moreover, the kinds of performance problems the employee is having—a significant increase in the number of late arrivals and typographical errors in written reports the employee routinely produces—cannot reasonably be attributed to a problem with the employee’s hearing. The employer may not ask for medical information about the employee’s hearing, but instead should counsel the employee about the performance problems or otherwise proceed as appropriate in accordance with its policies applicable to employee performance.

My thoughts: the reasonable accommodation process is all about accommodating a disability so that the person can get to the same starting line as a person without a disability. So, the performance and the disability need to be related. Finally, disability doesn’t trump performance issues.

7. Are there any other instances when an employer may ask an employee about the employee’s hearing?

Yes. An employer also may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it.

My thoughts: safely performing the essential functions of the job is not the issue as the EEOC covers later in the document. The issue is direct threat, which we have discussed many times in our blog, such as here, and is a high bar to meet.

In addition, an employer may ask an employee about the employee’s hearing to the extent the information is necessary:

• to support the employee’s request for a reasonable accommodation needed because of a hearing disability;
• to enable the employee to participate in a voluntary wellness program;[15] or
• to verify the employee’s use of sick leave related to a hearing condition if the employer requires all employees to submit a doctor’s note to justify their use of sick leave.[16]

Example 5: An employer maintains a leave policy requiring all employees who use sick leave for a medical appointment to submit a doctor’s note upon returning to work. Mark uses sick leave to attend an audiologist appointment to adjust his hearing aids. In accordance with its policy, the employer can require Mark to submit a doctor’s note for his absence; however, it may not require the note to include any additional information (such as the degree of Mark’s hearing loss, the strength of his hearing aids, or the results of the adjustment) if it is not needed to verify that Mark used his sick leave properly.

Keeping Medical Information Confidential

With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose that an employee has a hearing condition:

• to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions;
• to first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work;
• to individuals investigating compliance with the ADA and similar state and local laws; and
• where needed for workers’ compensation or insurance purposes (for example, to process a claim).

8. May an employer tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as working at home or working a modified schedule) that the co-worker is receiving a reasonable accommodation?

No. Telling coworkers that an employee is receiving an ADA reasonable accommodation amounts to a disclosure that the employee has a disability.[17] Rather than disclosing that the employee is receiving a reasonable accommodation, the employer may find it helpful to point out that many employee issues are personal and focus on the importance of maintaining the privacy of all employees.[18]

Employers may also be able to avoid many of these kinds of questions by training all employees on the requirements of equal employment laws, including the ADA, and by providing information about reasonable accommodation to all of their employees. Education on reasonable accommodation can be done in a number of ways, such as through written reasonable accommodation procedures, employee handbooks, staff meetings, and periodic online or in-person training. This kind of proactive approach may lead to fewer questions from employees who misperceive co-worker accommodations as “special treatment.”

Example 6: A large store does not provide its sales employees with smartphones. However, the employer does provide a deaf employee with one, as a reasonable accommodation, so that she can receive text messages instead of the numerous communications made over the public address system that she cannot hear, such as requests for sales representatives to report to different parts of the store to assist customers. If other employees ask why only she has a smartphone, the employer may not divulge any information about the impairment, including the fact that the smartphone is a reasonable accommodation.

Accommodating Applicants and Employees

The ADA requires employers to provide adjustments or modifications—called reasonable accommodations—to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability. Not all applicants or employees with a hearing condition will need an accommodation or require the same accommodations.

My thoughts: undue hardship can either be financial, which is incredibly difficult to show, or logistical (think title II and title III concept of fundamental alteration). The very last sentence of this paragraph is incredibly important as it is most certainly the case that not everyone with a hearing condition will need an accommodation or require the same accommodations. I see this mistake made all the time when it comes to hotels accommodating Deaf, deaf, and hard of hearing individuals.

9. What type of reasonable accommodations may applicants or employees with hearing disabilities need?

Some applicants or employees may need one or more of the following accommodations:

A sign language interpreter.

Example 7:  Based on Shawn’s online application and score on an initial assessment questionnaire, a manager contacts Shawn to schedule an in-person interview. Shawn requests that the employer provide an American Sign Language (ASL) interpreter for the interview. Absent undue hardship, the employer’s ADA obligation is to provide an ASL interpreter (in person or through a video remote interpreting service) for Shawn’s interview as a reasonable accommodation in the application process. (For more information about “reasonable accommodations” for applicants, see Question 14, below.)

 

Example 8: Simon has a hearing disability and works as a project manager for a regional telephone company. Simon is usually able to use his lip-reading ability to communicate individually with his co-workers. However, Simon occasionally requests a sign language interpreter for large-group conferences and meetings, because it is not possible for him to use lip-reading when people who are not in his line of sight are speaking. Simon’s employer would have to provide the sign language interpreter (in person or through a video remote interpreting service) as a reasonable accommodation, absent undue hardship. (For more information about “undue hardship,” see Question 12, below.)

My thoughts: example 8 unfortunately doesn’t make a lot of sense. The example talks about a person who needs an ASL interpreter for large group conferences but yet also relies on lipreading. It is possible that such a person exists but it would not happen frequently. A user of ASL who grows up on ASL where ASL is his or her or they first language is unlikely to be great at lipreading since ASL and English are not at all the same in their structure. It is also a stereotype that Deaf and deaf individuals are excellent lip readers. It is much more likely that a deaf or hard of hearing individual would lipread effectively than it is that a Deaf individual would lipread effectively. Finally, even the best lip reader, which I am one of as is my daughter, will only get 50% of what is said on the lips.

Assistive technology, including:

• Access to a video relay service or video remote interpreting service using equipment such as a videophone, computer, laptop, tablet, or smartphone.
• A hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants.
• Appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers).
• Enabling the streaming of sound directly from a device to hearing aids or cochlear implants.
• Utilizing accessibility features of mainstream technology (for example, using the captioning feature on virtual meeting platforms).
• A voice carry-over telephone, captioned telephone, text telephone, or TTY.[19]
• Equipment used for hearing protection to block noise or to protect hearing function, including equipment that can be used with hearing aids.
• Assistive software or applications (for example, for automated captioning, voice recognition, videoconferencing, or sound detection).

Example 9: Allen, who has a hearing disability, works as an information technology (IT) specialist with a small, internet-advertising firm. The IT specialist position requires frequent one-on-one meetings with the firm’s president. Because it will not cause an undue hardship, the firm accommodates Allen by acquiring voice recognition or automated captioning software for him to use in his meetings like concepts with the president. The software is programmed to transcribe spoken words into written electronic text.

My thoughts: I am not sure I understand the reference to voice recognition software, which I use all the time, but it doesn’t have anything to do with my hearing loss. With respect to automatic captioning software (which goes by the term ASR-automatic speech recognition), that can be very helpful. Keep in mind, that should technical terms or accents be involved, ASR will not be all that effective. In that situation, you may need to go with CART services.

• Assistive listening devices (ALDs).

Example 10: An employer has an annual all-employee meeting for more than 200 employees. Thelma, who has a hearing disability, requests the use of an ALD in the form of a personal FM system. Speakers would wear small microphones that would transmit amplified sounds directly to a receiver in Thelma’s ear. The employer determines that an ALD is a reasonable accommodation that will allow Thelma to participate in the meeting without causing an undue hardship.

My thoughts: depending upon the hearing devices used, assistive listening devices are going to vary considerably in terms of how successful they will be for a particular individual with a hearing loss.

• Augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice.
• Communication access real-time translation (CART), which translates voice into text at real-time speeds.

Example 11: Kendall works as an associate for an international consulting firm. Kendall has a hearing disability for which he uses a hearing aid and lip reading. His company sometimes conducts video-conferencing meetings with clients in other countries. During these meetings, Kendall finds it difficult to participate because the video feedback is not continuous. Kendall requests the use of remote CART services as an accommodation during international client meetings. The requested accommodation would translate the client’s spoken word on Kendall’s notebook computer monitor at real-time speed. This accommodation would allow Kendall to participate fully in the meetings and should be provided, absent undue hardship.

My thoughts: see my above comments about automatic speech recognition and CART.

Appropriate written memos and notes (especially used for brief, simple, or routine communications).

Note-taking assistance for those using CART services or sign language interpretation (to allow individuals using CART services or sign language interpretation to remain focused on translations).

Work area adjustments (for example, a desk away from a noisy area or near an emergency alarm with strobe lighting).

Example 12: Ann works as an accountant in a large firm located in a high-rise building. Ann has a large window in her office that faces the street-side of the building. She wears a hearing aid to mitigate her severe hearing condition. Throughout the workday many exterior noises (for example, police sirens, car horns, and street musicians) are amplified by Ann’s hearing aid and interfere with her ability to hear people speaking in her office. Ann requests, and her employer agrees, that moving her to a vacant interior office is a reasonable accommodation without causing an undue hardship.

My thoughts: digital hearing aids today are programmable. It is certainly possible that for many hearing aid users that a program could be developed by his or her or they audiologist so that background noise can be phased out.

Time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable.[20]

Example 13: Beth is deaf and requests leave as a reasonable accommodation to train a new hearing dog. Hearing dogs assist deaf and hard of hearing individuals by providing alerts to a variety of household and workplace sounds such as a telephone ring, door knock or doorbell, alarm clock, buzzer, name call, speaker announcement, and smoke or fire alarm. A hearing dog is trained to make physical contact and direct a person to the source of the sound. Under Beth’s employer’s leave policy, Beth does not have enough annual or sick leave to cover the requested absence. The employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship.

My thoughts: small d used here when both deaf and Deaf should have been used. As everyone knows, I have a hearing dog. Keep in mind, it is not unusual for hearing dogs to be home-based and not used outside the residence.

Altering an employee’s marginal (that is, non-essential) job functions.

Example 14: Manny, a librarian, is primarily responsible for cataloguing books, writing book summaries, and scheduling book tours. Recently, Manny has had to fill in as a desk librarian since the regular librarian is on vacation. Manny has a hearing disability and uses a hearing aid. Manny finds it difficult to hear patrons if there is any background noise. He asks to switch his front desk duties with another librarian who processes book orders transmitted over the phone or internet. Since working at the front desk is a minor function of Manny’s job, the employer should accommodate the change in job duties, absent undue hardship.

My thoughts: no two hearing losses are dealt with in the same way. The ADA requires an individualized analysis and that is especially important when dealing with hearing loss.

Reassignment to a vacant position.

Example 15: Sonny, a stocking clerk on the floor of a large grocery store, develops Ménière’s disease, which produces a loud roaring noise in his ears for long periods of time. It is difficult for him to hear customers and co-workers on the floor because of music and frequent announcements played over the store’s public address system and background noise in the store, particularly during busy periods. The store manager tried several unsuccessful accommodations. Upon request, the employer should reassign Sonny to a vacant position as a stocking clerk in the warehouse at the same location, absent undue hardship. The employee is qualified for the reassignment position and the warehouse is a quieter environment with fewer background sounds.

My thoughts: the jurisprudence involving mandatory reassignment, which we have discussed numerous times in our blog, such as here, is all over the place. The jurisprudence is consistent that reassignment is an option of last resort. After that, there can be considerable differences (compare the Seventh Circuit with the 11^th circuit).

Other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

Example 16: Maria is hired as a chemist for a pharmaceutical company. She communicates primarily through sign language and lip reading due to a hearing disability. Shortly after she is hired, she is required to attend a two-hour orientation meeting. The meeting includes a brief lecture session followed by a series of video vignettes to illustrate key concepts. As an accommodation, Maria requests a seat near the trainer, closed captioning during the video segments, and adequate lighting to allow her to read lips throughout the meeting. There is no undue hardship and the employer grants these reasonable accommodations to allow Maria to participate fully during the orientation session.

Although these are some examples of the types of accommodations commonly requested by employees with hearing conditions, other employees may need different changes or adjustments.[21]  Employers should ask the particular employee requesting an accommodation what is needed that will help the employee do the job. There also are extensive public and private resources to help employers identify reasonable accommodations. For example, the Job Accommodation Network (JAN) is a free, confidential service that provides information about many types of accommodations for applicants and employees with disabilities based on the needs of a given individual and workplace.

My thoughts: as I mentioned above, it would be unusual for an individual to communicate primarily through sign language and lip reading, though it could happen. Also, don’t forget about the interactive process.

 

10. How does an applicant or employee request a reasonable accommodation?

There are no “magic words” that a person has to use when requesting a reasonable accommodation. A person simply has to tell the employer that the individual needs an adjustment or change at work because of an impairment.

My thoughts: this is not the standard I would use. I agree that no magic words are required. However, the interactive process obligation is triggered the minute an employer knows that a disability exists that may need accommodations. Such notification can be communicated to an employer in a myriad of different ways. Be very cautious about taking the statement above that “a person simply have to tell the employer that the individual needs an adjustment or change at work because of an impairment,” literally or you will run yourself into magic words litigation. See also this blog entry.

A request for reasonable accommodation also can come from a family member, friend, health professional, or other representative on behalf of a person with a disability. If an employer requires more information about the disability and why an accommodation is needed, it should engage in an “interactive process”—a dialogue with the applicant or employee—to obtain information that will help the employer in handling the request.

Applicants and employees may find it helpful to discuss any necessary accommodations with the employer prior to starting a new position or assuming new job duties, even if an accommodation was provided during the job application process or in a previous position. Similarly, employers may, as a best practice, inform all new hires post-offer that they may request any needed accommodation in advance of their start date or once on the job.

My thoughts: it is always best for the employer to have the person with a disability lead when it comes to seeking accommodations.

Example 17: Liona has a hearing disability and is employed as an electrician. As a team leader, Liona is responsible for receiving her team’s list of daily work sites and any accompanying special instructions, traveling to the sites with her team, and directing the day’s work at each site. Liona receives the list of assignments and accompanying special instructions from the company owner during daily morning meetings attended by all of the team leaders. The special instructions are given orally. One morning, at the conclusion of a team leader meeting, Liona passes a note to the owner reminding the owner of her difficulty hearing and requesting that all special instructions for the team’s assignments be written down because she is having difficulty hearing them. Liona has requested a reasonable accommodation.

11. May an employer request documentation when an applicant or employee requests a reasonable accommodation?

Sometimes. When a person’s hearing condition is not obvious, the employer may ask the person to provide reasonable documentation about how the condition limits major life activities (that is, whether the person has a disability) and why a reasonable accommodation is needed. An employer, however, is entitled only to documentation sufficient to establish that the individual has a hearing disability and to explain why an accommodation is needed. A request for an individual’s entire medical record, for example, would be inappropriate, as it likely would include information about conditions other than the individual’s hearing.[22]

Example 18: Luíz, who has a hearing disability and communicates primarily through lip reading and speech, works as a programmer for an internet security firm. The firm acquires a new client and promotes Luíz to be the senior programmer responsible for all consultations regarding the internet security system design for the new client. Luíz’s new assignment requires frequent phone conversations and teleconference meetings that do not allow for the use of Luíz’s lip reading skills to aid in his verbal comprehension. As a result, Luíz’s audiologist recommends, and Luíz requests, the use of a voice carry-over phone, which would provide an almost real-time text relay of the client’s speech and also allow the client to hear Luíz. Because Luíz’s impairment is not an obvious disability, his employer may lawfully request medical documentation to verify his disability.

My thoughts: this “obvious,” piece comes up quite a bit. For example, in the service animal area, the DOJ regulations make this a critical question before you can make two inquiries to establish whether the animal is a service animal. In the employment context, obviousness drives the amount of documentation you can request and is not a prerequisite before you can make any request at all.

 

12. Does an employer have to grant every request for a reasonable accommodation?

No. An employer does not have to provide an accommodation if doing so would be an undue hardship. Undue hardship means that providing the reasonable accommodation will result in significant difficulty or expense. An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property). Nor do employers have to provide employees with personal use items, such as hearing aids or other devices that are used both on and off the job.

My thoughts: personal devices are not a reasonable accommodation obligation of the employer.

If more than one accommodation would be effective, the employee’s preference should be given primary consideration, although the employer is not required to provide the employee’s first choice of reasonable accommodation. If a requested accommodation is too difficult or expensive, an employer may choose to provide an easier or less costly accommodation as long as it is effective in meeting the employee’s needs.

My thoughts: “too difficult or expensive,” is not the standard. The standard is undue hardship, which can be either logistical or financial. With respect to financial, I can literally count on one hand the number of cases that I have read over the years that found a financial undue hardship.

Example 19: An employee with a bilateral hearing disability requests use of communication access real-time translation (CART) for an upcoming training. In place of the CART device, the employer suggests an assistive listening device (ALD) because it is less expensive than CART. Twelve managers and supervisors are scheduled to take the training in a conference room at the employer’s offices. Much of the information will be presented in a lecture format, accompanied by slides with printed information. The size of the room, the number of participants in the training, and the format of the training make it possible for the employee to use a portable assistive listening system effectively. The employer may, therefore, provide an ALD instead of CART under these circumstances.

My thoughts: if there is ever an example why understanding the distinction between Deaf, deaf, and hard of hearing matters, it is this example. The problem is that we have no idea of the severity of this employee’s bilateral hearing disability. The severity of the hearing loss matters a great deal with respect to what accommodation is requested. Depending on the answer to that question, it is entirely possible that an assistive listening device will not work at all for a particular individual in this context. To suggest that it would ignores how hearing loss actually works among individuals.

 

Example 20: A deaf employee requests a sign language interpreter for regular staff meetings. The employer suggests that a co-worker could take notes and share them with the deaf employee or that a summary of the meeting could be prepared. These alternatives are not effective because they do not allow the deaf employee to ask questions and participate in discussions during the meetings as other employees do. Absent undue hardship, the employer must provide a sign language interpreter (in person or through a video remote interpreting service) for the meetings.

My thoughts: small d. Also, the EEOC in this example references the need for communication to be effective. The EEOC does not contain any effective communication rules. As we have discussed many times in the blog, the DOJ does contain effective communication rules for title II entities and title III entities. As we have also discussed, such as here, the effective communication rules are not the same for title II entities and four title III entities. All this said, an employee with a hearing loss is inevitably dealing with effective communication, so as a preventive law matter, the employer may very well want to consider utilizing the effective communication rules of title II for guidance. Taking that approach will likely prevent a lot of successful lawsuits against the company.

13. May an employer be required to provide more than one accommodation for the same applicant or employee?

Yes. The duty to provide a reasonable accommodation is an ongoing one. Although some applicants or employees with a disability may require only one reasonable accommodation, others may need more than one. An employer must consider each request for a reasonable accommodation and determine whether it would be effective and whether providing it would pose an undue hardship.

Example 21: A deaf employee can communicate effectively with her supervisor by lip-reading and with written notes. The employee wants to attend a three-day training program that will involve extensive communication between participants and the instructor and among participants themselves. The employee requests CART— communication access real-time translation—for the training. The employer may explore whether another form of reasonable accommodation—for example, a sign language interpreter—would be effective. But, the employer must provide the CART service or another effective form of reasonable accommodation, absent undue hardship, since lip-reading and exchanging occasional notes will not enable the employee to participate fully in the training.

My thoughts: small d. It is extraordinarily hard for me to believe that effective communication could ever occur with a Deaf employee through the use of notes and lipreading. See this blog entry for example. It is not unusual at all for a Deaf, culturally deaf individual, to not read beyond a fourth grade reading level It is far more likely that the effective communication in this situation will be done through an ASL interpreter. Finally, videoconferencing platforms have come a long way with respect to accommodating those in the hearing loss community. For example, the automatic speech recognition has gotten quite good, though its accuracy may vary from platform to platform. Also, the platforms are now including the ability of ASL interpreters to have their own window on the call. While the example uses a small d, I still find it extraordinarily hard for me to believe that effective communication for a deaf individual could be done this way. Finally, see my thoughts immediately above with respect to the DOJ effective communication rules and how they can be used as a guideline.

14. Does an employer have to provide a reasonable accommodation to an applicant with a disability during the application process even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job?

Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless the employer can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.[23]

My thoughts: I completely agree with this. However, there is some awful case law out there that we have discussed in the blog, such as here, that might disagree with this.

Example 22: An employer is impressed with an applicant’s resume and contacts the individual to come in for an interview. The applicant, who is deaf, requests a sign language interpreter for the interview. The employer cancels the interview and refuses to consider this applicant further because it believes it would have to hire a full-time interpreter. The employer has violated the ADA. The employer should have proceeded with the interview, using a sign language interpreter (in person or through a video remote interpreting service), absent undue hardship, and at the interview inquired to what extent the individual would need a sign language interpreter to perform any essential functions requiring communication with other people.

By contrast, if the employer provides a requested sign language interpreter and the applicant fails a test that is a requirement of the application process, and the poor performance is unrelated to the deafness, the employer does not have to provide any further reasonable accommodations for this individual because the individual is no longer qualified to continue with the application process.[24]

My thoughts: small d when capital D is likely intended. We discussed this hypothetical in an actual case in this blog entry where Johns Hopkins University lost big time. Also, be advised that the Deaf community absolutely cannot stand video remote interpreting services.  

15. What kinds of reasonable accommodations are related to the benefits and privileges of employment?

Reasonable accommodations related to the benefits and privileges of employment include accommodations that are necessary to provide individuals with disabilities access to facilities or portions of facilities to which all employees are granted access (for example, employee break rooms and cafeterias), access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.

My thoughts: the reasonable accommodation obligation absolutely extend to the benefits and privileges of employment. See this case for example, which we discussed here.

Example 23: Karin, who is deaf, works as an associate in a large investment firm. Every December, the partner in charge of the team for which Karin works holds a party at his residence for all of the team’s members and a number of the firm’s clients. Upon Karin’s request, her employer provides her a sign language interpreter to allow Karin to fully participate in the social event.

My thoughts: this example obviously concerns an individual who is Deaf and not deaf.

An employer will not be excused from providing an employee with a disability with a necessary accommodation because the employer has contracted with another entity to conduct the event.

Example 24: An employer offers its employees a training course on organization and time management provided by a local company with which the employer has contracted. An employee who is deaf wants to take the course and asks for CART services or a sign language interpreter. The employer claims that the company conducting the training is responsible for providing what the deaf employee needs, but the company responds that the responsibility is the employer’s. Even if the company conducting the training has an obligation, under Title III of the ADA,[25] to provide “auxiliary aids and services,” which could include CART services and sign language interpreters, this fact would not alter the employer’s obligation to provide the employee with a reasonable accommodation for the training.[26]

My thoughts: in other words, what the EEOC is saying here is that the ADA is a nondelegable duty, which we discussed here.

Concerns About Safety

When it comes to safety concerns, an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing conditions. Instead, the employer should evaluate an individual on the individual’s skills, knowledge, experience, and how the hearing condition affects the individual.

16. When may an employer refuse to hire, terminate, or temporarily restrict the duties of a person who has or had a hearing disability because of safety concerns?

An employer only may exclude an individual with a hearing disability from a job for safety reasons when the individual poses a direct threat. A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.[27] An employer should conduct an individualized “direct threat” assessment of an individual’s present ability to safely perform the essential functions of the job.[28] This determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In making a direct threat assessment, the employer must consider:

(1)   the duration of the risk;

(2)   the nature and severity of the potential harm;

(3)   the likelihood that the potential harm will occur; and

(4)   the imminence of the potential harm.[29]

The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.[30]

My thoughts: as you can see from #16, direct threat and safety are not at all the same things.

Example 25: A school district denies an applicant with a hearing disability a job as a school bus driver for elementary school students, believing that she will not be able to drive safely and will not be able to monitor students, especially in the event of a medical or other emergency. The applicant has a clean driving record and has previously performed jobs transporting elderly patients by van to doctor’s appointments and social events. Based on past experiences with accommodations, the applicant could monitor students effectively—and without compromising her driving—if an additional mirror highlighting the rear of the bus were installed. The mirror, placed above the driver, would allow her to better monitor students whose conversations she may not be able to hear or understand as well as those students located in the front of the bus. Under these circumstances, the school district cannot demonstrate that this applicant would pose a direct threat to the safety of others, and its refusal to hire her would violate the ADA.[31]

 

Example 26: An employee with a hearing disability requests training to operate a forklift at a large hardware store. For safety reasons, the employer requires that forklift operators be able to communicate with a spotter employee while operating the machine. The employee and the employer contact the JAN, which suggests that they explore whether the employee could be accommodated using a visual alert on a smartwatch, a vibrating pager with a light signal, or a smartphone or tablet on a dashboard mount to allow communication with the spotter. If the employer determines that there is a reasonable accommodation that does not pose an undue hardship, based on the facts of the specific work setting and tasks, it must provide the accommodation and allow the employee training on the forklift. If no reasonable accommodation can be provided absent undue hardship, the employer may deny the employee training on a forklift.[32]

My thoughts: JAN is a great resource.

17. What should an employer do when another federal law prohibits it from hiring individuals with a hearing condition for particular positions?

If a federal law prohibits an employer from hiring a person with a hearing condition for a particular position, the employer is not liable under the ADA. The employer should be certain, however, that compliance with the law actually is required, not voluntary. The employer also should be sure that the law does not contain any exceptions or waivers.

Example 27: Terry has a severe hearing condition that is slightly improved by her cochlear implant. She applies for a position driving large trucks. These positions are subject to hearing requirements and other standards enforced by the Department of Transportation (DOT), and Terry has not obtained an exemption from the DOT from its hearing requirements. The employer may rely on DOT’s hearing requirement in denying Terry employment. However, the employer may not rely on the DOT hearing requirement to exclude Terry from a position driving smaller trucks, which are not subject to DOT’s standards. Instead, the employer would have to establish that Terry would pose a direct threat, within the meaning of the ADA, if it denied her a position driving smaller trucks because of a hearing disability.

My thoughts: see Justice Thomas’s opinion in Kirkingberg v. Albertsons, Inc., here.

Harassment

The ADA prohibits harassment, or offensive conduct, based on disability just as other federal laws prohibit harassment based on race, sex, color, national origin, religion, age, and genetic information. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Example 28: Leonard works as a stocker at a local electronics store. Leonard lost his hearing two years ago as the result of a rare and debilitating illness. Since Leonard’s recovery and return to work, his co-workers have constantly taunted him about his condition and recklessly driven the forklift near him while yelling for him to move. The employees know that Leonard cannot hear their warnings and often laugh at Leonard’s startled reaction when he sees the forklift approaching him. Leonard complains to his supervisor in accordance with his employer’s anti-harassment policy. The employer must promptly investigate and address the harassing behavior.

My thought: absolutely!

18. What should employers do to prevent and correct harassment?

Employers should make clear that they will not tolerate harassment based on disability or on any other protected basis. This can be done in a number of ways, such as through a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager. Finally, the employer should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action. For more information on the standards governing harassment under all of the EEO laws, see EEOC’s Harassment webpage.

Retaliation and Interference

The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an investigation, proceeding, or litigation related to a charge of employment discrimination. It is also unlawful for an employer to retaliate against someone for requesting a reasonable accommodation, or to interfere with the exercise of ADA rights. Persons who believe that they have been retaliated against or subjected to ADA interference may file a charge as described below.

My thoughts: don’t forget about interference, which we discussed here.

How to File a Charge of Employment Discrimination

Against Private Employers and State/Local Governments

If you believe that your employment-related ADA rights may have been violated, the EEOC can help you decide what to do next. For example, if the employer refuses to consider your request for a reasonable accommodation to complete an application process or perform your job, and if you think you would be able to do the job with a reasonable accommodation, you might consider filing a charge of discrimination with the EEOC. A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws.

If you file a charge of discrimination, the EEOC will conduct an investigation. Mediation, which is an informal and confidential way for people to resolve disputes with the help of a neutral mediator, may also be available. Because you must file an EEOC charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is covered by a state or local employment discrimination law), it is best to begin the process early. It is unlawful for an employer to retaliate against you for contacting the EEOC or filing a charge.

If you would like to begin the process of filing a charge, go to our EEOC Online Public Portal,  contact your local EEOC office (contact information available on the local office page), or contact us by phone at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone).

My thoughts: with respect to state or local governments, you absolutely want to file with the EEOC. Keep in mind, that should the weight of the federal government come in, it will be the DOJ and not the EEOC that will prosecute a case against the state or local governmental entity.

Against the Federal Government

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by contacting the office responsible for the agency’s EEO complaints program. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or though ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late). If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation. When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred. A detailed description of the federal sector EEO process is available on our website.

If you require language assistance (such as a sign language interpreter or assistive technology) to file a complaint, participate in an EEOC investigation, or as part of an EEOC hearing process, you should submit a request to your agency for assistance. It will then be the responsibility of the responding agency to provide needed language assistance.

This information is not new policy; rather, this document applies principles already established in the ADA’s statutory and regulatory provisions as well as previously issued guidance. The contents of this publication do not have the force and effect of law and are not meant to bind the public in any way. This publication is intended only to provide clarity to the public regarding existing requirements under the law. As with any charge of discrimination filed with the EEOC, the Commission will evaluate alleged ADA violations based on the facts and circumstances of the particular matter and applicable legal principles.

My thoughts:The Trump administration started this disclaimer. It is absolutely accurate in light of the case we discussed here, Kisor v. Wilkie.

 

[1] See EEOC Disability-Related Publications and People with Certain Types of Health Conditions/Disabilities.

[2] The ADA uses terminology that has specific legal meanings. Two central ADA terms are “disability” and “impairment.”

On the issue of self-identification, the National Association of the Deaf (NAD) states that:

The deaf and hard of hearing community is diverse.  There are variations in how a person becomes deaf or hard of hearing, level of hearing, age of onset, educational background, communication methods, and cultural identity.  How people “label” or identify themselves is personal and may reflect identification with the deaf and hard of hearing community, the degree to which they can hear, or the relative age of onset.

See National Association of the Deaf (NAD), Community and Culture–Frequently Asked Questions, (last accessed January 17, 2023).

In addition, NAD addresses particular labels that often are favored or disfavored. In this document, EEOC does not use the terms that NAD indicates are most often disfavored, including the term “hearing impaired.” However, to ensure consistency with the ADA definition of disability, which incorporates references to physical “impairment,” this document uses the terms “disability” and “impairment” as necessary as a legal matter.

[3] For example, disability laws in California, Pennsylvania, New Jersey, New York, and a number of other states apply to employers with fewer than 15 employees.

[4] See National Institute on Deafness and Other Communication Disorders, Quick Statistics About Hearing (citing to CDC report) (last accessed January 17, 2023).

[5] See Note 2, above.

[6] Id.

[7] The definition of “disability” is construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA, and the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. 29 C.F.R. § 1630.1(c)(4).

[8] See 29 C.F.R. §1630.2(i)(1)(ii).

[9] 42 U.S.C. § 12102(4)(E).

[10] Id.; 29 C.F.R. § 1630.2(j)(5)(i).

[11] 29 CFR 1630.2(j)(3)(iii).

[12] 29 C.F.R. § 1630.2(k).

[13] Federal contractors are required under 41 C.F.R. § 60-741.42, a regulation issued by the Office of Federal Contract Compliance Programs (OFCCP), to invite applicants to voluntarily self-identify as persons with disabilities for affirmative action purposes. The ADA prohibition on asking applicants about medical conditions at the pre-offer stage does not prevent federal contractors from complying with the OFCCP’s regulation. See Letter from Peggy R. Mastroianni, EEOC Legal Counsel, to Patricia A. Shiu, Director of OFCCP (Aug. 8, 2013)(last accessed January 18, 2023).

[14] An employer also may ask an employee about the employee’s hearing or send the employee for a medical examination when it reasonably believes the employee may pose a direct threat because of an impairment. See “Concerns About Safety.”

[15] The ADA allows employers to conduct voluntary medical examinations and activities, including obtaining voluntary medical histories, which are part of an employee wellness program (such as a smoking cessation program), as long as any medical records (including, for example, the results of any diagnostic tests) acquired as part of the program are kept confidential. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA at Question 22.

[16] An employer also may ask an employee for periodic updates on the employee’s condition if the employee has taken leave and has not provided an exact or fairly specific date of return or has requested leave in addition to that already granted. Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health without violating the ADA.

[17] An employer’s attempt to indirectly advise an employee’s colleagues that the employee is receiving a reasonable accommodation (by, for example, telling an employee’s colleagues that the ADA requires the employer to make changes for that employee) may also amount to a disclosure that the employee has a disability.

[18] See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA at Question 42.

[19] A text telephone or teletypewriter (TTY) allows a telephone user to send typed messages to another caller and to receive typewritten messages from the caller either directly (if the caller is also using a TTY) or through a telephone relay service (TRS) operator. A voice carry-over telephone allows someone with a hearing condition to communicate orally over the telephone and to receive text communications from the other caller that are transcribed by a TRS operator. A captioned telephone allows users with hearing conditions to receive communications over the telephone orally while receiving an almost simultaneous text translation.

[20] For more information regarding an employer’s responsibility to provide leave for covered individuals, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Questions 17 – 21 (2002); Employer-Provided Leave and the Americans with Disabilities Act (2016).

[21] For information on specific accommodation ideas for different types of limitations, see the Job Accommodation Network’s Searchable Online Accommodation Resource (SOAR)(last accessed January 17, 2023).  JAN can also be reached at 800-526-7234 (Voice) or 877-781-9403 (TTY).

[22] Requests for documentation to support a request for accommodation may violate Title II of the Genetic Information Nondiscrimination Act (GINA) where they are likely to result in the acquisition of genetic information, including family medical history. 29 C.F.R. §1635.8(a). For this reason, employers may want to include a warning in the request for documentation that the employee or the employee’s doctor should not provide genetic information. Id. at 1635.8(b)(1)(i)(B).

[23] Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Question 13.

[24] Id. at Question 13, Examples A & B.

[25] In an effort to eliminate discrimination against individuals with disabilities, Title III of the ADA requires businesses and non-profit organizations that are public accommodations to comply with basic nondiscrimination and building accessibility requirements, provide reasonable modifications to policies and practices, and supply auxiliary aids (for example, assistive listening devices) to ensure effective communication with persons with disabilities. For more information on the requirements of Title III of the ADA, visit the website for the U.S. Department of Justice, Civil Rights Division, Disability Rights Section (last accessed January 17, 2023).

[26] An employer should include, as part of any contract with an entity that conducts training, provisions that allocate responsibility for providing reasonable accommodations. This can help to avoid conflicts or confusion that could arise and result in an employee being denied a training opportunity. An employer should also remember, however, that it remains responsible for providing a reasonable accommodation that an employee needs to take advantage of a training opportunity, regardless of how that responsibility has been allocated in the contract.

[27] 29 C.F.R. § 1630.2(r).

[28] Id.

[29] Id.

[30] Id.

[31] See Rizzo v. Children’s World Learning Center, 213 F.3d 209 (5th Cir. 2000).

[32] See Job Accommodation Network’s Accommodation and Compliance: Hearing Impairment  (last accessed January 17, 2023), describing a process for determining if a particular accommodation would meet employer and employee needs and providing links to specific accommodation ideas for different types of hearing conditions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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