“Only The Hearing Impaired (And Some Doctors) Actually Believe Hearing Impairment Is A Disability"

These are the words of a hearing-impaired lawyer.  So — is hearing-impairment a disability?

Deafness, or hearing impairment, as a disability, and the requirement of “reasonable accommodations,” is in the news because of a newly announced settlement of an Americans with Disabilities Act (“ADA”) lawsuit brought by the EEOC against the Cheesecake Factory in Seattle.

It was alleged that a dishwasher who is deaf was newly-hired then subsequently fired when the company denied his requests “for orientation training with either closed captioned video or an American Sign Language (ASL) interpreter.”  The case was settled for $15,000.

Reacting to the settlement, an EEOC attorney stated: “All [plaintiff] wanted was the opportunity to work at The Cheesecake Factory on a level playing field with hearing employees, with accessible training on how to clock in for his shifts and how to use the online scheduling system. These changes should help alleviate the isolation that a deaf employee can experience in the workplace, and equip the employee with the basic tools to succeed.”

This is not the first time I’ve written about the necessity of providing a reasonable accommodation under the ADA to people have suffer from hearing impairment or deafness.

What Is “Reasonable Accommodation?”

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.

Deafness As A Disability and Reasonable Accommodation

Two years ago I wrote about a package handler employed by UPS who was deaf and sued the company under the ADA, claiming that he needed 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 claimed that UPS 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 denied the allegations.

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.

And I wrote five 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.”

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.”

The Experience of Deafness

I would be remiss if I didn’t conclude with a re-post of a comment made in response to an earlier blog post of mine from 2013 — from a hearing-impaired lawyer. His whose words bear 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.

And then remember what the EEOC attorney said: “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.”

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]