1/26/23: EEOC Releases Updated Guidance on ADA Compliance for Individuals with Hearing Impairments
January 26, 2023
The Equal Employment Opportunity Commission provided an updated resource to explain its position on how employers should comply with the Americans with Disabilities Act’s (“ADA”) requirements as they apply to hearing-impaired employees and job applicants. This E-Alert will summarize the key information from the EEOC’s guidance.
The ADA protects individuals who: (1) have a physical or mental impairment that substantially limits one or more major life activity; (2) have a history of a substantially limiting impairment; or (3) are regarded as having a substantially limiting impairment. Importantly, whether an individual is disabled must be determined without considering the effects of any mitigating measures the individual uses, such as a hearing aid. If an individual can show that they are substantially limited in hearing (or another major life activity), or that they have a history of such limitations or are regarded as having such limitations, then the individual is entitled to the protections under the ADA. For example, individuals who have had corrective surgery that largely repaired a hearing impairment may still qualify as disabled because of their history of such limitations.
The guidance addresses the limitations the ADA imposes on employers related to questioning job applicants and employees regarding hearing conditions. The ADA has different rules for questions and exams in the pre-offer, post-offer, and post-acceptance stages. Employers may not question whether a job applicant has or had a hearing condition or treatment related to a hearing condition prior to making a job offer. Applicants are not required to disclose disabilities before accepting a job offer unless they will need reasonable accommodation for the application process itself.
What if an applicant has an obvious hearing impairment or discloses a non-obvious condition? Employers generally cannot ask applicants about obvious impairments, but if the employer has a reasonable belief that the applicant requires accommodation to complete the application process or perform the job, it may ask whether the applicant will need accommodations and what type.
After an offer is made, employers may ask questions regarding an applicant’s health; however, it is important to make inquiries uniformly rather than targeting specific applicants with such questions. Individuals may be asked for specific information if the request is related to previously obtained medical information. If an applicant discloses a hearing condition after receiving a job offer, an employer may ask the applicant questions aimed at assessing the severity of the hearing impairment and how it may affect the applicant’s ability to carry out the job duties. An offer cannot be withdrawn unless the individual is unable to perform the essential functions of a job without reasonable accommodations and without posing a direct threat to the health and safety of the applicant or others.
The EEOC guidance delves into numerous other issues that employers need to be aware of, such as how to respond when an employer suspects an employee’s performance may be suffering because of a hearing impairment, what types of reasonable accommodations hearing-impaired employees may need, and how employers should handle safety concerns due to hearing disabilities.
If you have questions regarding ADA compliance, contact the Barran Liebman team at 503-228-0500.
