By Roy Maurer
November 13, 2020
Two recent lawsuits filed by the U.S. Equal Employment Opportunity Commission (EEOC) are reminders that employers must make reasonable accommodations for deaf and hearing-impaired job applicants or risk violating the Americans with Disabilities Act (ADA).
The EEOC sued a Subway sandwich shop franchise in Bloomington, Ind., for rejecting a qualified, hard-of-hearing applicant for a sandwich-maker position by citing “a communication concern” due to the applicant’s “hearing and speaking.”
The agency said that conduct violated the ADA, which prohibits employment discrimination based on disability.
In another case, Dollar Tree Distribution, a subsidiary of retailer Dollar Tree, Inc., was sued by the EEOC for failing to accommodate or hire a deaf applicant for an entry-level warehouse job in Ridgefield, Wash.
According to the lawsuit, a supervisor deliberately “conducted the job interview in a manner in which the applicant could not fully understand the supervisor, even though the applicant had clearly identified himself as deaf and wore visible hearing aids. The supervisor also failed to respond to questions from the applicant about potential accommodations that would enable him to do the work if hired.”
Under the ADA, it is illegal to ignore a deaf or hearing-impaired applicant’s request for an accommodation or to refuse to hire an applicant because of a disability.
“The ADA is a promise that applicants with disabilities will be given the full opportunity to prove their capabilities and contribute to this nation,” said Nancy Sienko, director of the EEOC’s Seattle field office. “To disregard an applicant’s request for an accommodation during the interview sabotages that person’s opportunity to compete on a level playing field.”
She added that the lawsuit will highlight the importance of ensuring that all staff involved in recruiting and hiring understand how to respond to a disability accommodation request.
Employers must make reasonable accommodations to qualified applicants with disabilities to enable them to perform the essential functions of their jobs, said Matthew Luzadder, managing partner of the Chicago office of Kelley Drye. He added that “a reasonable accommodation is a modification or adjustment to a job, work environment, or the way things are usually done that enables a qualified applicant with a disability to enjoy an equal employment opportunity. The ADA applies to all aspects of recruiting and hiring, including job advertisements, applications, interviews and post-offer medical examinations.”
According to the EEOC, employers’ stereotypical assumptions about hearing loss include that workers with hearing impairments will cause safety hazards, increase employment costs or have difficulty communicating in fast-paced environment. Those perceptions are not necessarily true, and the ADA requires that employers provide reasonable accommodations to qualified applicants, unless doing so creates undue hardship for the employer. Undue hardship means that the accommodation “is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.” It’s been a high standard for employers to meet but has been successfully used in defending ADA claims.
Failure to Comply Can Be Costly
In May, FedEx Ground agreed to pay $3.3 million to resolve a disability discrimination lawsuit filed by the EEOC charging that the company discriminated against deaf and hard-of-hearing applicants for package handler positions and denied those applicants reasonable accommodations during the hiring process.
The settlement requires FedEx to provide deaf and hard-of-hearing package handlers with access to live and video-remote American Sign Language interpreting, captioned videos and scanning equipment with nonaudible cues such as vibrations.
“Going forward, FedEx will also train managers and HR representatives on ADA compliance and create written resources to assist them in identifying and providing accommodations for deaf and hard-of-hearing package handlers,” Luzadder said. The EEOC’s website is a great resource for practical job accommodations, he added.
According to the Job Accommodation Network, a resource center for assistance on workplace accommodations and disability employment issues, typical solutions to accommodate applicants and employees who are deaf or have hearing impairments include the use of apps, captioning services, communication access technologies, sign language interpreters, texting software, or, simply, notepads and whiteboards.
Key ADA provisions related to the recruiting and hiring process include:
- Employers may not ask questions about an applicant’s medical condition or require an applicant to have a medical examination prior to making a conditional job offer. Interviewers cannot ask applicants questions about hearing impairment or hearing loss, even when obvious, or the use of hearing aids, even when visible.
- Applicants are not required to disclose that they have hearing impairment unless they will need a reasonable accommodation for the application or interview process.
- Employers may ask questions about the applicant’s health after he or she has accepted the job, including questions about hearing impairment, limitations and accommodations to perform the job, and may require a medical examination, as long as all applicants for the same type of job are treated equally.
- Employers may not withdraw a job offer from an applicant with a hearing impairment if the applicant is able to perform the essential functions of the job, with or without reasonable accommodation, without posing a significant risk to health or safety in the workplace.