Tiffany R. Allen, Esq., Campbell Durrant, P.C. | February 2023
On January 24, 2023, the U.S. Equal Employment Opportunity Commission published an update that provides employers with information about hearing disabilities and explains how employers should handle situations involving job applicants and employees who are hearing impaired.
American adults report a variety of hearing conditions, including deafness, and according to the EEOC, those individuals may have an ADA covered disability if they can show that they are “substantially limited in hearing or another major life activity,” have a “record of an impairment that substantially limited a major life activity in the past” or has been regarded as having an impairment due to an employer taking a prohibited action against them because of a hearing condition or a perceived hearing impairment.
Once an employer learns about an employee’s hearing condition, has observed poor performance, and reasonably believes the performance issues are related to the hearing condition, then the employer can ask the employee questions about their disability, ask for medical information related to the disability, or require the employee to undergo a medical examination. An employer may not ask an employee whether he or she has a medical condition simply because they have poor performance. The employer must have reliable information regarding the employee’s medical condition before inquiring further.
The EEOC guidance reminds employers that they cannot ask job applicants whether they have or have had a hearing condition or treatment related to a hearing condition before making a job offer. This includes questions during the interview process about whether the applicant uses hearing aids or has a cochlear implant. Employers are permitted to ask applicants about their ability to perform in a noisy or fast paced environment, and other related questions, if those skills are essential functions of the job. The EEOC update also reminds employers that job applicants are not required to disclose a past or present disability unless they need an accommodation during the interview process, such as the need for assistance from a sign language interpreter. It is important for employers to know that an individual with a hearing condition can request an accommodation after being hired even if they did not disclose their condition during the interview process.
The EEOC recognizes that some applicants may choose to disclose their hearing condition after receiving a conditional offer of employment. If this happens, employers are reminded that they may ask additional questions of the applicant related to their hearing condition, their known limitations, or whether they will need an accommodation. Employers cannot withdraw a conditional offer of employment solely because of the hearing condition if the individual is able to perform the essential functions of the job with or without a reasonable accommodation and does not pose a direct threat to their health and safety or that of others.
It is important to remember that employees with hearing conditions can be hardworking, good employees and employers are required to treat job applicants and employees with hearing conditions the same as any other interested candidate or employee. Employers must ensure that their hiring team and supervisors are trained on the ADA and the interactive process during all phases of the employment process.
The attorneys at Campbell Durrant are available to assist with training and can provide advice on how to best navigate the ADA.