Diversity in the Workplace Questions & Answers
Diversity in the Workplace Q & A
Question: When is the right time to tell an employer about a learning disability such as dyslexia or ADHD?
--L.J., New York
Answer: Lawyers often advise clients with such so-called hidden disabilities not to disclose them unless they need some help in the workplace because of a disability, says Brian East, an attorney with Advocacy Inc., an Austin, Texas, nonprofit disability-rights organization. If your disability isn't hampering your work, "you may not want to disclose it because of the possibility of discrimination."
However, if your disability is causing job problems, it may be in your own best interest to disclose it, says Mr. East, who is also co-chairman of the disability rights committee of the National Employment Lawyers Association. For example, if you need an accommodation because your ADHD is making it difficult for you to comply with certain paperwork requirements, you would need to disclose your disability in order to receive help. Before doing so, however, you should have in mind a businesslike, positive way of presenting your need, plus a specific, reasonable request for accommodation. For ideas on accommodations, see www.jan.wvu.edu. Another potential reason for disclosing a disability: You are experiencing disability-related harassment on the job.
Question: We have three boys age 10 and under. Can you recommend any parenting books?
--X.R., Oak Brook, Ill.
Answer: For insightful writing specific to parenting boys, take a look at any works by these three authors: Michael Thompson, a Cambridge, Mass., psychologist, school consultant and co-author of "Raising Cain"; William Pollack, a clinical psychologist, Harvard Medical School professor and co-author of "Real Boys"; and Michael Gurian, a Spokane, Wash., family therapist and author of "The Wonder of Boys." Dr. Thompson has a new book due out early next year, "It's A Boy," covering what to expect during various developmental stages. Many parents also enjoy books by Steve Biddulph, an Australian family therapist and author of "Raising Boys."
Question: I recently paid an overnight sitter $10 an hour, or $130, for a 13-hour job. A co-worker said that was too much, that I shouldn't have paid her for the time she was sleeping. What's the right answer?
--J.L., Las Vegas
Answer: There is room for reasonable people to disagree on this. Personally, I pay overnight sitters the same way you did; the inconvenience of sleeping away from home seems to me to warrant round-the-clock pay. Experts agree, however, that a better approach is to negotiate a flat price for the whole job. Michael Gerard of Childcare Solutions, a Beachwood, Ohio, nanny agency, recommends a two-tier rate, paying more for the hours the children are awake. Mr. Gerard says what you paid was about right; on SitterCafe.com, a sitter-search site he runs, sitters' quotes for 12- to 24-hour overnight baby-sitting jobs run at an average $10 an hour, he says.
Genevieve Thiers, chief executive of Sittercity.com, a sitter-search site, however, says you paid a little too much. She advises paying the sitter her usual hourly rate until 10 p.m., then negotiating a flat rate for the overnight hours; a reasonable range would be $40 to $100 for the overnight portion of the job, varying with your location, the number of children and the sitter's age and experience, she says. Then, consider paying your sitter a little extra for the inconvenience of spending the night away from home.
Questions and Answers about Deafness and Hearing Impairments in the Workplace
Questions and Answers about Deafness and Hearing Impairments in the Workplace – Keywords, ADA, Americans with Disabilities Act, EEOC, hearing impairment, hearing disabilities, reasonable accommodations, employees, job applicants, hearing disabled, hearing aids, Diversity in the Workplace
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees and state and local government employers of the same size. Section 501 of the Rehabilitation Act provides the same protections for federal employees and applicants for federal employment. Most states also have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and provide protections in addition to those available under the ADA.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. This document is part of a question-and-answer series addressing particular disabilities in the workplace. It explains how the ADA might apply to job applicants and employees with hearing impairments, including:
when a hearing impairment is a disability under the ADA;
when an employer may ask an applicant or employee about a hearing impairment;
how employers can ensure the confidentiality of applicants’ and employees’ medical information;
what types of reasonable accommodations an individual with a hearing disability may need;
to what extent an employer must provide a reasonable accommodation to an individual with a hearing disability;
how an employer should handle safety concerns and harassment issues; and,
how an individual with a hearing impairment can file a claim against an employer under the ADA or the Rehabilitation Act.
GENERAL INFORMATION ABOUT HEARING IMPAIRMENTS
Between 2000 and 2004, estimates of the number of people in the United States with a self-described “hearing difficulty” ranged from 28.6 million 1
to 31.5 million.2
The number of individuals with hearing difficulty is expected to rise rapidly by the year 2010 when the baby-boomer generation reaches age 65. As compared to other age groups, the percentage of individuals with hearing difficulty is greatest among those individuals age 65 and above. A “hearing difficulty” can refer to the effects of many different hearing impairments of varying degrees.
The Centers for Disease Control and Prevention (CDC) refer to hearing impairments as conditions that affect the frequency and/or intensity of one’s hearing.4
Although the term “deaf” is often mistakenly used to refer to all individuals with hearing difficulties, it actually describes a more limited group. According to the CDC, “deaf” individuals do not hear well enough to rely on their hearing to process speech and language. Individuals with mild to moderate hearing impairments may be “hard of hearing,” but are not “deaf.” These individuals differ from deaf individuals in that they use their hearing to assist in communication with others. As discussed below, people who are deaf and those who are hard of hearing can be individuals with disabilities within the meaning of the ADA.
The many different circumstances under which individuals develop hearing impairments can affect the way they experience sound, communicate with others, and view their hearing impairment. For example, some individuals who develop hearing losses later in life find it difficult both to adjust to a world with limited sound, and to adopt new behaviors that compensate for their hearing loss. As a result, they may not use American Sign Language (ASL) or other communication methods at all, or as proficiently as individuals who experienced hearing loss at birth or at a very young age.
Individuals with hearing impairments can perform successfully on the job and should not be denied opportunities because of stereotypical assumptions about hearing loss. Some employers assume incorrectly that workers with hearing impairments will cause safety hazards, increase employment costs, or have difficulty communicating in fast-paced environments. In reality, with or without reasonable accommodation, individuals with hearing impairments can be effective and safe workers.
1. When is a hearing impairment a disability under the ADA?
A hearing impairment is a disability under the ADA if: (1) it substantially limits a major life activity; (2) it substantially limited a major life activity in the past; or (3) the employer regarded (or treated) the individual as if his or her hearing impairment was substantially limiting.
The determination of whether a hearing impairment is substantially limiting must be made on an individualized, case-by-case basis.
If an individual uses mitigating measures, such as hearing aids, cochlear implants, or other devices that actually improve hearing, these measures must be considered in determining whether the individual has a disability under the ADA. Even someone who uses a mitigating measure may have a disability if the measure does not correct the condition completely and substantial limitations remain, or if the mitigating measure itself imposes substantial limitations.
Measures that merely compensate for the fact that someone has a substantially limiting hearing loss but that do not actually improve hearing, such as sign language interpreters or lip-reading, are not mitigating measures. Furthermore, if an individual does not use mitigating measures, then the hearing impairment must be considered as it exists, without speculation about how a mitigating measure might lessen the hearing loss.
Even if an individual’s hearing impairment does not currently substantially limit a major life activity, the condition may still be a disability if it was substantially limiting in the past.
Finally, an individual’s hearing impairment may be a disability when it does not significantly restrict major life activities, but the employer treats the individual as if it does.
OBTAINING, USING, AND DISCLOSING MEDICAL INFORMATION
Before an Offer of Employment Is Made
The ADA limits the medical information an employer can obtain from an applicant. An employer may not ask questions about an applicant’s medical condition or require the applicant to take a medical examination before it makes a conditional job offer. Accordingly, an employer cannot ask an applicant questions such as:
whether he has ever taken a test that revealed a hearing loss;
whether she uses any assistive devices for a hearing impairment (such as a hearing aid) or has done so in the past; or
whether she has any hearing loss due to an on-the-job accident or injury.
However, an employer may ask all applicants whether they will need a reasonable accommodation for the application process. For example, an employer may have a statement on its job announcement or its website directing applicants who need reasonable accommodations (e.g., a sign language interpreter, additional test-taking time) for the application process to contact a designated person in the company’s Human Resources Department.
2. May an employer request medical information about an applicant’s hearing impairment that is obvious or that the applicant has disclosed?
No, the employer may not ask for an applicant’s medical history, records, or other information about a hearing impairment that is obvious or that has been disclosed. However, if an employer reasonably believes that an applicant with a known hearing impairment will need a reasonable accommodation to do the job, it may ask if an accommodation is needed and, if so, what type.
3. Does an applicant have to disclose his hearing impairment if it is not obvious?
No, the ADA does not require an applicant to disclose his hearing impairment to a potential employer. Nevertheless, if an applicant knows he needs a reasonable accommodation to complete the hiring process, he must disclose his hearing impairment. Under the ADA, an employer must keep confidential any medical information the applicant discloses. (See Question 8 below, on confidentiality of medical information.)
After An Offer Of Employment Is Made
After an offer of employment is made, but before an applicant begins work, an employer may ask questions about an applicant’s health (including whether the applicant has a hearing impairment) and may require an applicant to take a medical examination, as long as the employer asks the same questions and requires the same examinations of all potential hires for the same type of position.
4. What can an employer do if it learns about an applicant’s hearing impairment after offering a job, but before the individual begins working and it believes that the applicant’s hearing impairment may affect job performance?
If an employer becomes aware of an applicant’s hearing impairment after offering the applicant a job and reasonably believes that the impairment may affect her ability to perform the job’s essential functions (i.e., fundamental job duties) or to perform them safely, the employer may ask the applicant for information to determine whether she can perform the essential functions of the position with or without a reasonable accommodation and whether she would pose a “direct threat” (i.e. a significant risk of harm to herself or others that cannot be reduced through reasonable accommodation). (For more information about “direct threat,” see Question 16, below.)
An employer may only withdraw a job offer made to an individual with a disability if it can demonstrate that the applicant is unable to perform the essential functions of the position with or without a reasonable accommodation or would pose a direct threat.
5. When may an employer ask if a hearing impairment or other medical condition is causing performance problems?
The ADA severely restricts the circumstances under which an employer may obtain information about an employee’s medical condition or require an employee to undergo a medical examination. If an employer has a reasonable belief, based on objective evidence, that an employee’s medical condition is the cause of performance problems or may pose a direct threat to the employee or others, it may ask questions about the impairment or require a medical examination.
An employer that does not have a reasonable belief that an employee’s performance problems are related to a hearing impairment may not ask questions about the impairment, but instead should handle the situation in accordance with its policies generally applicable to poor performance.
6. May an employer require a doctor’s note from an employee who asks for sick leave for reasons related to a hearing impairment?
Yes, if the employer requires all employees to provide a doctor’s note to support the use of sick leave or to verify that sick leave has been used appropriately. However, the employer may not ask for more information than is needed to verify that the leave was taken for appropriate reasons.
7. Are there other instances when an employer may ask an employee about his hearing impairment?
Yes. When an employee requests a reasonable accommodation for a hearing disability and the disability and/or need for accommodation is not obvious, an employer may ask for reasonable documentation showing that the condition is a disability and/or that accommodation is needed.
Disability-related questions and medical examinations are also permitted as part of an employer's voluntary wellness program. (For more information on the type of documentation an employer may obtain in support of a request for reasonable accommodation, see Question 11, below.)
Confidentiality of Medical Information
With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. The information must be kept in files separate from general personnel files and must be treated as a confidential medical record. Information about an applicant’s or employee’s hearing impairment or other medical information may be disclosed only:
to supervisors or managers in order to meet an employee’s need for reasonable accommodation(s) or in connection with an employee’s work restrictions;
to first aid or safety personnel where a condition might require emergency treatment or an employee would require assistance in the event of an emergency;
to government officials investigating compliance with the ADA or similar state and local laws;
as needed for workers’ compensation purposes (for example, to process a claim); and
for certain insurance purposes.
8. May an employer explain to co-workers that an employee is receiving a reasonable accommodation because of a hearing disability?
No. Telling co-workers that an employee is receiving a reasonable accommodation amounts to a disclosure of confidential medical information. An employer, however, may respond to co-workers' questions by explaining that it will not discuss the situation of any employee with co-workers. Additionally, an employer may be less likely to receive questions from co-workers if its employees are educated on the requirements of EEO laws, including the ADA.
ACCOMMODATING INDIVIDUALS WITH HEARING DISABILITIES
Employers are required to provide adjustments or modifications that enable qualified people with disabilities to enjoy equal employment opportunities unless doing so would result in undue hardship (i.e., significant difficulty or expense). Employers should not assume that all persons with hearing impairments will require an accommodation or even the same accommodation.
9. What type of accommodations may an individual with a hearing disability need?12
Applicants or employees with hearing disabilities may need one or more of the following accommodations:
a sign language interpreter
a TTY, text telephone, voice carry-over telephone, or captioned telephone13
a telephone headset
appropriate emergency notification systems (e.g., strobe lighting on fire alarms or vibrating pagers)
written memos and notes (especially used for brief, simple, or routine communications)
work area adjustments (e.g., a desk away from a noisy area or near an emergency alarm with strobe lighting)
assistive computer software (e.g., net meetings, voice recognition software)
assistive listening devices (ALDs)
augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice
communication access real-time translation (CART), which translates voice into text at real-time speeds
time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable.14
altering an employee’s marginal (i.e., non-essential) job functions
reassignment to a vacant position
other modifications or adjustments that allow a qualified applicant or employee with a hearing disability to enjoy equal employment opportunities.
10. How should someone with a hearing disability request a reasonable accommodation?
No “magic words” (such as “ADA” or “reasonable accommodation”) are required. An applicant or employee simply has to inform his employer (verbally or in writing) that he needs an adjustment or change in the workplace or in the way things are usually done because of a hearing impairment.
A family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of the individual with a hearing impairment. For example, an individual with a hearing disability may submit a note from her doctor requesting a change in the location of her work area due to excessive noise that interferes with her hearing aid.
An individual with a hearing disability is not required to request an accommodation needed for the job at a particular time (e.g., during the application process), and an employer may not refuse to consider a request for accommodation because it believes the request should have been made earlier. However, it is a good idea for an individual with a hearing disability to request reasonable accommodation before performance or conduct problems occur. (See Question 14, below.)
11. May an employer request documentation when an individual with a hearing impairment requests a reasonable accommodation?
Sometimes. When a person's hearing impairment is not obvious, the employer may ask the person to provide reasonable documentation showing the existence of a disability and why a reasonable accommodation is needed. The request for documentation must be reasonable. An employer may not ask for information about conditions unrelated to the one for which the accommodation is requested or require more information than is necessary for the employer to determine whether an accommodation is needed.
12. Does an employer have to provide the reasonable accommodation that an individual with a disability wants?
No. An employer has a duty to provide a reasonable accommodation that is effective to remove the workplace barrier. An accommodation is effective if it will provide an individual with a disability with an equal employment opportunity to participate in the application process, attain the same level of performance as co-workers in the same position, and enjoy the benefits and privileges of employment available to all employees. Where two or more suggested accommodations are effective, primary consideration should be given to the individual’s preference, but the employer may choose the easier or less expensive one to provide.
13. Does an employer have to provide accommodations that would be too difficult or expensive?
An employer is not required to provide accommodations that would result in an undue hardship (i.e., significant difficulty or expense). If an employer determines that the cost of a reasonable accommodation would cause an undue hardship, it should consider whether some or all of the accommodation’s cost can be offset. For example, in some instances, state vocational rehabilitation agencies or disability organizations may be able to provide accommodations at little or no cost to the employer. There are also federal tax credits and deductions to help offset the cost of accommodations,15
and some states may offer similar incentives. However, an employer may not claim undue hardship solely because it is unable to obtain an accommodation at little or no cost or because it is ineligible for a tax credit or deduction.
Even if a particular accommodation would result in undue hardship, however, an employer should not assume that no accommodation is available. It must consider whether there is another accommodation that could be provided without undue hardship.
14. Are there actions an employer is not required to take as reasonable accommodations?
Yes. An employer does not have to remove an essential job function (i.e., a fundamental job duty), lower production standards, or excuse violations of conduct rules that are job-related and consistent with business necessity, even where an employee claims that the disability caused the misconduct. Additionally, employers are not required to provide employees with personal use items, such as hearing aids or similar devices that are needed both on and off the job.
15. Is it a reasonable accommodation for an employer to make sure that an employee wears a hearing aid or uses another mitigating measure?
No. The ADA does not require employers to monitor an employee to ensure that he uses an assistive hearing device. Nor may an employer deny an individual with a hearing disability a reasonable accommodation because the employer believes that the individual has failed to take some measure that would improve his hearing.
16. What kinds of reasonable accommodations are related to the “benefits and privileges” of employment?
Reasonable accommodations related to the “benefits and privileges” of employment include those accommodations that are necessary to provide an employee with a hearing disability equal access to information communicated in the workplace, the opportunity to participate in employer-sponsored events (e.g., training, meetings, social events, award ceremonies), and the opportunity for professional advancement..
An employer will not be excused from providing an employee with a hearing disability with a necessary accommodation because the employer has contracted with another entity to conduct the event.
CONCERNS ABOUT SAFETY
17. When may an employer prohibit an employee with a hearing disability from doing a job because of safety concerns?
If an employee would pose a “direct threat” (i.e. a significant risk of substantial harm to herself or others) when working in a particular position, even with a reasonable accommodation, then an employer can prohibit her from performing that job. Any potential harm must be substantial and likely to occur.
An employer must consider the following to assess if an employee or applicant poses a direct threat:
the duration of the risk involved;
the nature and severity of the potential harm;
the likelihood the potential harm will occur;
the imminence of the potential harm; and
the availability of any reasonable accommodation that might reduce or eliminate the risk.
18. What should an employer do when federal law prohibits it from hiring anyone with a certain level of hearing loss?
An employer has a defense to a failure-to-hire claim under the ADA if another federal law actually prohibits it from hiring someone with a hearing impairment for a particular position. However, the employer should ensure that the federal law requires, rather than permits, exclusion of the individual with a disability and that there are no applicable exceptions.
Employers are prohibited from harassing or allowing employees with disabilities to be harassed in the workplace. When harassment is brought to an employer's attention, management and/or the supervisor must take steps to stop it.
19. What constitutes illegal harassment under the ADA?
The ADA prohibits unwelcome conduct based on disability that is sufficiently severe or pervasive to create a hostile or abusive work environment. Acts of harassment may include verbal abuse, such as name-calling, and behavior, such as offensive graphic and written statements or physically threatening, harmful or humiliating actions. The law does not protect workers with disabilities (or any workers) from merely rude or uncivil conduct. To be actionable, conduct related to an employee's hearing disability must be perceived by the affected individual as abusive and must be sufficiently severe or pervasive that a reasonable person would perceive it as hostile and abusive.
20. What should employers do to prevent and correct harassment?
Employers should make clear that they will not tolerate harassment based on a disability or on any other basis (i.e., race, color, sex, religion, national origin, or age). This can be done in a number of ways, including a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report harassment to a manager or other designated official. Finally, employers should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action. For more information on the standards governing harassment under federal EEO laws, see the EEOC’s Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, available at http://www.eeoc.gov/policy/docs/harassment.html
The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an employment discrimination investigation, proceeding, or litigation. Persons who believe that they have been retaliated against may file a charge of retaliation with the EEOC as described below.
21. What should someone do who believes that his or her rights under the ADA may have been violated?
Private Sector/State and Local Governments
An applicant or employee who believes that his employment rights have been violated on the basis of a hearing disability and wants to make a claim against an employer must file a “charge of discrimination” with the EEOC. The charge must be filed by mail or in person with a local EEOC office within 180 days from the date of the alleged violation. The 180-day filing deadline is extended to 300 days if a state or local anti-discrimination law also covers the charge.20
The EEOC will notify the employer of the charge and may ask for a response and supporting information. Before a formal investigation, the EEOC may select the charge for its mediation program. Participation in mediation is free, voluntary, and confidential. Mediation may provide the parties with a quicker resolution of the case.
If mediation is not pursued or is unsuccessful, the EEOC investigates the charge to determine if there is “reasonable cause” to believe discrimination occurred. If reasonable cause is found, the EEOC will then try to resolve the charge. In some cases, where the charge cannot be resolved, the EEOC will file a court action. If the EEOC finds no discrimination, or if an attempt to resolve the charge fails and the EEOC decides not to file suit, it will issue a notice of a “right to sue,” which gives the charging party 90 days to file a lawsuit. A charging party also can request a notice of a “right to sue” from the EEOC 180 days after the charge first was filed with the EEOC.
An applicant or employee who believes that her employment rights have been violated on the basis of a hearing disability and wants to make a claim against a federal agency must file a complaint with that agency. The first step is to contact an EEO Counselor at the agency within 45 days of the alleged discriminatory action. The individual may choose to participate in either counseling or in Alternative Dispute Resolution (ADR) if the agency offers this alternative. Ordinarily, counseling must be completed within 30 days and ADR within 90 days.
At the end of counseling, or if ADR is unsuccessful, the individual may file a complaint with the agency. The agency must conduct an investigation unless the complaint is dismissed. If a complaint contains one or more issues that must be appealed to the Merit Systems Protection Board (MSPB), the complaint is processed under the MSPB’s procedures. For all other EEO complaints, once the agency finishes its investigation the complainant may request a hearing before an EEOC administrative judge or an immediate final decision from the agency.
In cases where a hearing is requested, the administrative judge issues a decision within 180 days and sends the decision to both parties. If the agency does not issue a final order within 40 days after receiving the administrative judge’s decision, the decision becomes the final action of the agency.
A complainant may appeal to EEOC an agency’s final action within 30 days of receipt. The agency may appeal a decision by an EEOC administrative judge within 40 days of receiving the administrative judge's decision.