EEOC Offers Guidance for Deaf Worker Accommodations

On January 24th, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released updated guidance on how the Americans with Disabilities Act (ADA) applies to hearing disabilities, including accommodations for deaf people and hard-of-hearing individuals. The resource document also provides information on avoiding actions that lead to discrimination against deaf and hard-of-hearing individuals. The EEOC continues to enforce federal laws prohibiting discrimination in employment. Penalties for disability discrimination charges can quickly accumulate into significantly large sums. In December 2022, for example, the EEOC fined a company $8 million for pregnancy and disability discrimination claims.

Overview of the Guidance on Hearing Disabilities

The EEOC’s updated resource document, Hearing Disabilities in the Workplace and the Americans with Disabilities Act, applies employer obligations under the ADA to deaf and hard-of-hearing applicants and employees. According to the document, 15% of American adults report some trouble hearing. Some hearing conditions may qualify as ADA disabilities. Deaf and hard-of-hearing individuals have an ADA disability if the impairment substantially limits a major life activity (hearing), if they have a record of impairment, or if they are regarded as having a disability. Notably, employers should ignore the positive effects of any mitigating measure (hearing aids or cochlear implants) when making a determination of disability. Regardless, they may still need to provide accommodations for deaf people and hard-of-hearing individuals. Altogether, the EEOC’s resource document outlines the following:

• how disability-related questions can violate the ADA;
• reasonable accommodations for deaf and hard-of-hearing applicants and employees;
• employer concerns about safety; and
• harassment, discrimination, and retaliation against deaf and hard-of-hearing individuals.

In addition, the EEOC warns employers against making stereotypical assumptions about applicants or employees with hearing disabilities. Such unfounded assumptions may involve a perceived safety risk, increased costs, or difficulty communicating. These assumptions can constitute discrimination when employers deny deaf and hard-of-hearing individuals job opportunities.

Accommodations for Deaf and Hard-of-Hearing Individuals

All businesses subject to state, federal, or local laws regarding disability discrimination must comply with their legal duty to provide reasonable accommodations to qualified individuals with a disability upon request, barring undue hardship to the business. Discrimination laws cover virtually all employers. Employers with 15 or more employees must comply with the ADA and any applicable state or local laws. Meanwhile, state or local law covers those with less than 15 employees. A reasonable accommodation is a modification to a process, job role, or work environment to help an individual with a physical or mental impairment perform the essential functions of a job. Reasonable accommodations for deaf and hard-of-hearing individuals may include:

• a sign language interpreter (for example, during the application or interviewing stage);
• assistive technology (like teletypewriters, video relay services, and assistive software);
• using written memos and notes;
• work area adjustments (like moving a desk away from a noisy area)
• leave to obtain medical treatment, equipment, or to train a hearing dog; and
• altering non-essential job functions.

Ways to Prevent Hearing Disability Discrimination

Generally, failing to provide reasonable accommodations for deaf and hard-of-hearing individuals can lead to disability discrimination. The ADA also prohibits harassment or offensive conduct against people who are deaf or hard of hearing. This can include offensive jokes, slurs, name-calling, assault or threats, intimidation, offensive images, or ridicule. The harassment must be severe enough to create a hostile work environment or result in an adverse employment action. To prevent harassment and discrimination, employers should practice and communicate a zero-tolerance policy. A written anti-harassment policy can be communicated in an employee handbook, in a staff meeting, and through periodic training. As employers can be vicariously liable for harassment against deaf and hard-of-hearing individuals, they should require that such conduct be promptly reported to a manager. Finally, employers should conduct thorough investigations of any harassment report and take timely corrective action. If an employer has failed to provide reasonable accommodations for deaf and hard-of-hearing individuals or to report harassment, individuals may file a discrimination charge using the EEOC’s Public Portal.