Deafness And Reasonable Accommodation

A newly filed lawsuit gives me the opportunity to discuss — once again – the Americans with Disabilities Act (“ADA”), deafness as a disability, and the requirement of “reasonable accommodations.”

What Is “Reasonable Accommodations?”

The ADA provides that an employer has impermissibly discriminated against an employee claiming a disability where the employer has not made “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”

An employer to whom an employee raises the issue of a disability and requests a reasonable accommodation must engage in meaningful discussions with the employee as to the proposed accommodation.  The EEOC has repeatedly stated that an employer has an “affirmative duty” to engage in this interactive process with the employee.

A New Lawsuit

According to an article in Philly.com, a package handler employed by UPS who is deaf is suing the company under the ADA, claiming that he needs an American Sign Language interpreter at employee meetings and to understand “vital” workplace communications necessary for him to perform his job, such as safety and emergency procedures, company policies and procedures, and other workplace communications.

He claims that UPS has repeatedly failed to provide him with a reasonable accommodation, such as an ASL interpreter, and has caused him “stigmatization, embarrassment, and anxiety over workplace safety.”  ASL is his primary language.  The company denies the allegations.

Deafness As A Disability and Reasonable Accommodation

I wrote three years ago about an Arizona federal judge who ruled that a company which provides services to disabled clients had failed to hire a hearing-impaired applicant because of her disability, and failed to accommodate her by sticking to its “rigid policy or practice of denying hearing-impaired applicants’ requests for interpreting services costing more than $200 to complete its pre-employment orientation and training.”

The judge wrote that the company “denied [plaintiff] an employment opportunity and the denial was based on her need for reasonable accommodations. Indeed, Defendant’s failure to offer [plaintiff] reasonable accommodations foreclosed her opportunity for employment by preventing her from proceeding further in the application process.”

The irony of a company which assists the disabled discriminating against a deaf employee was not lost on readers.

In 2013, I wrote about a then newly-filed EEOC lawsuit brought on behalf of a hearing-impaired employee who was not given the accommodation of an American Sign Language interpreter, and a second EEOC suit on behalf of a deaf applicant who the company refused to accommodate by providing an interpreter and then failed to hire.

An EEOC attorney repeated the EEOC mantra that “It’s not only bad business to forgo hiring a qualified employee simply because of fears, biases or stereotypes against people with disabilities, it’s also a violation of the law.”

On the other hand, I mentioned that a federal court in Pennsylvania had ruled that deafness in one ear does not constitute a disability under the ADA.  Plaintiff claimed that she “became totally deaf in one ear and had balance problems due to surgery removing a brain tumor. … [and] was able to continue performing her job functions without accommodation, but had difficulty concentrating.”

The Court said that the plaintiff “testified that her deafness in her left ear was not a distraction … and she did not mention any specific instances where her hearing loss caused a problem other than that she ‘didn’t hear some things.’”   Therefore, this hearing impairment in one ear was not a disability under the ADA, even under the expanded ADA Amendments Act.

The Experience of Deafness

As to the condition of deafness, a post of mine from 2013 was devoted entirely to an email which I received from a hearing-impaired lawyer – whose words bears repeating here:

“Only the hearing impaired and some doctors actually believe hearing impairment is a disability. Even lawyers almost unanimously think the hearing impaired are (1) cognitively impaired, (2) lying, (3) not trying hard enough, and (4) crazy.

Saying one needs accommodation almost uniformly makes people (1) contemptuous, and (2) angry. For some reason, virtually all hearing people seem to think that one is pretending that there is something wrong with their voices. They angrily tell one to listen harder, to get one’s hearing aid adjusted, or, perhaps best, to get one’s ears cleaned.

Lawyers tell us we have to expect not to work if we’re going to act this way–or best, ‘rather than whine, all the hearing impaired lawyers should get together and give each other work.’

Many of us were born this way.  We hardly know what we’re not hearing even when we can hear sound drop out and we watch lips move silently at the other end of a conference table or across the court room or at the grocery store checkout.  You can imagine how well we network — and give each other work ….”

Takeaway:  See the quote above.