This blog entry discusses just what is an IDEA FAPE anyway. It is a Sixth Circuit published decided on January 4, 2023, in the case of Doe v. Knox County Board of Education, here. As usual the blog is divided into categories and they are: key facts taken directly from the opinion; issues presented; court’s reasoning that IDEA exhaustion is not required because a FAPE is not involved; court’s reasoning that plaintiff’s request for preliminary injunction must be referred to the lower court; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Key Facts Taken Directly from the Opinion

 

The complaint describes misophonia as “a disorder of decreased tolerance to specific sounds or their associated stimuli.” Id. According to Doe, the normal sounds of eating food or chewing gum cause her to suffer “great fear and anxiety.” Id., PageID 252. These common noises trigger a “fight or flight” sensation, forcing Doe to escape from areas in which she hears them. Id. They also exacerbate her recurring migraines. Id.

Before high school, Doe’s misophonia did not affect her academic performance. Id., PageID 255. Her private middle school barred students from eating food and chewing gum in classrooms. Id. She thus could attend class without incident and excelled at her academics. Id., PageID 253-54. Doe was a “straight A student” and National Junior Honors Society member. Id., 253, 255; Doe Decl., R.27-2, PageID 265.

According to Doe’s complaint, most of Knox County’s public high schools likewise bar students from eating food and chewing gum outside the cafeteria. Compl., R.27, PageID 255. Yet Doe decided to attend L&N STEM Academy. Id., PageID 250. This high school’s policy allegedly allows each teacher to decide whether students may eat food and chew gum on a class-by-class basis. Id., PageID 255-56. Some teachers, like Doe’s ninth-grade math teacher, prohibit food and gum, so she has flourished in this class. Id., PageID 256. The high school also prohibits eating food or chewing gum in areas with “expensive equipment,” such as digital-art classrooms. Doe Decl., R.27-2, PageID 266. But other teachers, like Doe’s ninth-grade history teacher, allegedly allow “rampant” eating and chewing. Compl., R.27, PageID 256. The high school also allows students to eat throughout an 80-minute elective (“Genius Hour”) that Doe would like to take. Id., PageID 257. L&N’s permissive policies have forced Doe to avoid this elective and to leave her regular classes about 50% of the time, rendering her “physically and emotionally exhausted” at day’s end. Id., PageID 256.

Doe’s parents repeatedly asked Doe’s teachers to ban eating and chewing during her classes. Id. But some teachers allegedly have refused on the ground that L&N’s official policy permits this conduct. Id., PageID 257. Doe’s parents thus turned to the school’s administrators, asking them for this accommodation about halfway through her ninth-grade year in December 2021. Id. The administrators denied the request. Id., PageID 258-59. But they noted that Doe’s parents could appeal this decision administratively. Id., PageID 259 n.8.

The next month, her parents instead brought this suit on Doe’s behalf against Knox County. They alleged that the county’s refusal to grant Doe the requested accommodation—a classroom ban on eating and chewing for all students except those with medical needs—violated the ADA and Rehabilitation Act. Id., PageID 255, 259-60. They requested a permanent injunction that would require L&N to implement the accommodation for Doe. Id., PageID 260-61.

Knox County also described the accommodations that L&N had provided to Doe. Since her arrival at the school as a ninth grader, Doe has had a “504 plan” (a plan under § 504 of the Rehabilitation Act). Odom Decl., R.44-2, PageID 451. Among other things, this plan gives Doe preferential seating near the teacher and allows her to wear noise-cancelling headphones. Id. It also gives her additional time to complete assignments and permits her to take tests in isolation. Id. Under a “`break’ system” that administrators developed with Doe’s parents, moreover, she could signal to a teacher that she needed a break of a specified length and obtain a new seat on her return to class. Id. But administrators allege that Doe stopped using this “collaborative” system and started leaving class without attempting to return. Id., PageID 452.

According to L&N’s principal, Doe’s teachers have all requested that her peers limit eating in class. Allen Decl., R.44-1, PageID 446. But Doe responds that her case has now attracted unwanted local attention. The Knox County mayor, a retired professional wrestler who competed under the moniker “Kane,” has described the suit as “gum gate” on Twitter. Br., R.15, PageID 168. (The mayor has no affiliation with the Knox County Board of Education.) According to her father, this attention has caused some cruel students to target Doe by making noises that trigger her condition. K.M. Decl., R.31-1, PageID 359.

II

Issues Presented

  1. Does this case require exhaustion under the IDEA?
  2. If, exhaustion is not required, should the court grant plaintiff’s request for a preliminary injunction?

 

 

III

Court’s Reasoning That the Case Does Not Require Exhaustion under the IDEA Because a FAPE Is Not Involved

 

  1. Fry, which we discussed here, is the first thing that has to be looked at.
  2. In Fry, the Supreme Court identified the relief that the IDEA makes available to students. It then held that the IDEA allows parent to seek relief for only one injury, which is the denial of a free appropriate public education (FAPE). The Supreme Court added that parent need not exhaust IDEA if they seek some other benefit that an IDEA hearing officer could not provide.
  3. In Fry, the Supreme Court adopted a complaint centered approach. It held that the key was figuring out whether a free appropriate public education was the crux of the complaint. If it was, exhaustion was required. If it was not, exhaustion was not required.
  4. Fry posed three questions. First, could a student’s parents have sought the relief if the challenged conduct had arisen outside the school in say a public theater or library? Second, could a teacher or guest at the school rather than the student have requested the same relief? If the answer was no to those questions, the parents were likely seeking a free appropriate public education. However if the answer was yes to those questions, a student was likely not seeking a free appropriate public education. Another factor the Supreme Court considered was whether the parents were using IDEA processes before bringing suit. If they were, that would suggest that they believed they were seeking an IDEA related remedy.
  5. Although Fry directed courts to ask whether the key to the complaint was whether a free appropriate public education was the sought for relief, it didn’t offer much input into what the term of art meant.
  6. The IDEA text and circuit precedent makes it clear what is required when parents are seeking relief that is available under the IDEA only. In that situation, parents are seeking relief under IDEA only if a child needs an instructional change and not just a noninstructional accommodation to some school rule or policy.
  7. IDEA requires States to give a free appropriate public education only to students with disabilities. IDEA connects both phrases to the term, “special education.” A free appropriate public education is defined as special education and related services provided in conformity with a child’s IEP. It defines a child with a disability as a child with certain impairments who by reason thereof needs special education and related services. In other words, free appropriate public education and special education, for a child with a disability is a student needing that type of education.
  8. The definition of special education in the IDEA shows that a request for a free appropriate public education is a request for uniquely tailored teaching. Special education under IDEA means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and other institutions, in other settings, and instruction in physical education.
  9. To request a free appropriate public education, parents must seek instruction that is specially designed. That is, they have to seek relief about the action of instructing or teaching their child or imparting of knowledge or skill to him or her. That requested teaching must also exceed what is usual or customary. An IDEA regulation puts it as parents must seek a change to the content, methodology, or delivery of the teaching to address the unique needs of a child ensure access of the child to the general curriculum.
  10. The definition of related services confirms that a child must need teaching changes in order to receive services. The phrase includes transportation and developmental, corrective, and other supportive services that may be required to assist a child with a disability to benefit from special education. It is therefore expanding the available relief the cover items required for a child to obtain specially designed instruction.
  11. IDEA does not allow parents to seek the services independent of specially designed instruction. In other words, services cannot be related to special education if the child does not need special education. As an IDEA regulation explains, a child does not qualify for the benefits of the IDEA if the child only needs noninstructional accommodations.
  12. A child may qualify for relief under the ADA or the Rehabilitation Act and not IDEA because the ADA and the Rehabilitation Act cover children who need regular and not just special education.
  13. Circuit court cases agree with the general rule that the IDEA requires instructional changes. Courts also require administrative exhaustion when parents are seeking a change to the delivery or methodology of their child’s instruction.
  14. Courts also generally hold that parent need not exhaust claims challenging noninstructional harms, such as a service animal.
  15. The court saved the question of whether the IDEA exhaustion rule is jurisdictional for another time.
  16. Plaintiff did not need to proceed through the IDEA administrative processes because there complaint did not request any instructional changes. Instead, they asked for a ban on eating and chewing in all of her academic classrooms, which has nothing to do with an instructional change.
  17. A ban on eating and chewing is neither special education nor a related service. Also, no ordinary speaker would describe such a ban as specially designed instruction either because there is nothing innately instructional about the prohibition. That is, such a prohibition would not change the content, methodology, or delivery of the instruction given to the plaintiff. Instead, this change would be more naturally described as a change to the physical school environment much in the way a ramp would change the environment for a person in a wheelchair or a peanut prohibition would change the environment for student allergic to peanuts.
  18. Limits on eating and chewing gum in a classroom could not be typically called a service. Even so, it doesn’t matter whether a service is involved at all because the plaintiff does not allege any facts suggesting that their child needed other specially designed instruction. In fact, the complaint alleged that she excelled at her educational endeavors when the problematic sounds have not pervaded her classroom. Allegations were also made that she had no problem with the content of the instruction or the way that teachers deliver it. So, the plaintiff is requesting the accommodation to gain access to regular education and not to special education.
  19. The request made by the plaintiff looks nothing like the typical kind of request that courts have found falling within the IDEA, such as a request for a one-on-one aide or for a teacher to integrate a child’s iPad into the teacher’s lesson plans.
  20. Fry’s two hypothetical questions also support this conclusion. For one, plaintiff could have tried to seek an eating and chewing ban in many other places beside the school. Also, other people could have requested the same type of ban sought by plaintiff’s parents in this case.
  21. Plaintiff’s parents have never sought an IEP for plaintiff under the IDEA. Instead, she has only been provided with a §504 plan under the Rehabilitation Act. In fact, litigation already occurred specifically making it clear that plaintiff was not eligible for IDEA services.
  22. Trying to apply the Fry questions does not mean confusing the challenged conduct with the resulting injury. That approach was specifically rejected by Fry.
  23. Since plaintiff seeks no instructional changes, plaintiff did not need to exhaust IDEA processes.

 

 

IV

Court’s Reasoning That Plaintiff’s Request for Preliminary Injunction Must Be Referred to the Lower Court.

 

 

  1. The DOJ has issued regulations, 28 C.F.R. §35.130(c)(7)(i), that a public entity has to make reasonable modifications to policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modification fundamentally alters the nature of the service, program or activity. So, plaintiff’s parents must show that a switch from a policy allowing food in the classroom to a policy prohibiting food qualifies as a moderate rather than a significant change in the relevant policy. They also must deal with the proposition put forward by the school that a change like that requires the college -like school to alter its entire (i.e. a fundamental alteration), because it does not have a designated cafeteria.
  2. In Rehabilitation Act cases, courts have held that parents must show not just that their preferred accommodation was reasonable but also that the provided the accommodation was unreasonable. Further, the law suggests that plaintiff’s parents would have to show that the §504 plan provided to her by the school district was unreasonable giving due regards to the professional judgment of school administrators.

 

V

Knox County Board Takeaways

 

  1. I have always thought that Fry was very difficult to apply in the real world.
  2. If Doe prevails, by definition it would be very unlikely that a person in a 504 plan would ever have to exhaust administrative remedies because 504 plans do not involve specially designed instruction.
  3. Depending upon the Supreme Court decision in Perez, which is the other blog entry for today, the issue of instructional changes may become a very big deal indeed.
  4. Doe means that school districts need to have separate procedures for violation of an IDEA FAPE v. a Rehabilitation Act FAPE.
  5. The court gets it wrong in its preliminary injunction discussion with respect to what is a reasonable modification. A reasonable modification has nothing to do with it being moderate. Instead, the question is whether it constitutes an undue burden or a fundamental alteration, which is a completely different question. One can even argue that a significant change is a lower bar than a fundamental alteration.
  6. Professional judgment of school administrators is a thing. That is, courts will respect the judgment of school administrators providing the school goes through its proper paces, such as we discussed here and what happens when they don’t, here.
  7. This case will also ask plaintiff attorneys to carefully consider whether their client’s situation can be handled entirely under a 504 plan because under this case, the odds would be very high that exhaustion of administrative remedies would not be required for a student only in a 504 plan.
  8. This case may also force plaintiffs and their attorneys to consider whether they want to resist any effort by the school to force their student into the IDEA system rather than the 504 system.

Today’s blog entry is the blog entry that I was going to do last week until the EEOC guidance on hearing disabilities in the workplace intervened. That particular guidance was the most personal one that I have ever written. Today, we go back to a more traditional type of blog entry. On January 18, 2023, oral argument occurred in Perez v. Sturgis Public Schools. Perez considers the question of whether a person is preempted from filing an ADA claim because the plaintiff had previously settled his IDEA claim. Perez doesn’t really answer the question as to when IDEA exhaustion required in the first place. What I am doing today is posting simultaneously two different blog entries because it gets real long otherwise. The first one is a discussion of the Perez oral argument and my thoughts takeaways on that. The second one is a discussion of Doe v. Knox County Board of Education, here, a published decision from the Sixth Circuit that goes into depth on what an IDEA FAPE is.

 

I

Perez Oral Argument

 

  1. Justice Thomas right out of the gate wondered if the ADA and the IDEA were two completely different types of remedies meant for two completely different types of things? He returned to that thought on more than one occasion. For example, he later said that where you had exhaustion requirements, the relief would normally be similar to the exhaust the claims, which is not the case when you compare IDEA with the ADA.
  2. Chief Justice Roberts essentially wondered about both IDEA and §504 both having free appropriate public education requirements (F.A.P.E.), and what that might mean for resolving the case.
  3. Justice Kagan wondered if a decision in favor of the student would lead to cases focusing on form over substance so that certain remedies were placed in a complaint just to avoid the exhaustion requirement. She also wondered about the parallel proceedings that would be created.
  4. Justice Jackson said that the plain meaning of both statutes projected that dual tracks (one for IDEA and one for ADA), were perfectly permissible. She also wondered whether this truly was a situation where a person was doing an end run around the IDEA.
  5. Justice Alito inquired whether the use of the term remedies and the use of relief in the IDEA exhaustion statute was of any significance. That is, are the two terms synonymous?
  6. Justice Alito also explored whether a settlement on an IDEA matter would activate a futility exception with respect to an ADA matter on the same facts.
  7. Justice Thomas wondered about the claim that is being exhausted, IDEA, doesn’t naturally fit the claim that the plaintiff is trying to pursue in this case (the ADA claim). In other words, normally informal, administrative, and then judicial proceedings are all about the very same thing pursuing similar remedies at different stages, which is not the case here. In response, the attorney for the student was unaware of any statute that had a similar exhaustion requirement as the IDEA does.
  8. Justice Alito wondered whether this case was about the denial of a FAPE? The student’s attorney admitted that a FAPE was involved but that wasn’t important to the case. In other words, Fry does not drive the issue here, which is a question of remedies and what happens to remedies under other laws when an IDEA case settles.
  9. Justice SotoMayor wondered whether the situation did not involve two separate proceedings mandated by circumstances creating a very odd creature.
  10. Justice Barrett inquired whether under a broad reading of IDEA’s exhaustion requirement that the only way to preserve an ADA claim would be to reject an IDEA settlement, which would also jeopardize attorney fees.
  11. Justice Jackson inquired about the legislative history behind the IDEA exhaustion statutory provision.
  12. Justice Alito wondered if the IDEA was not on the books, would the claim be a denial of a reasonable accommodation under the ADA.
  13. Justice SotoMayor asked whether the elements of an ADA claim and an IDEA claim were different. In responding to the question, the DOJ attorney (amicus to the student), also noted that the offenses under the two laws were different as well.
  14. Chief Justice Roberts wondered if the term relief and the term remedies in the IDEA exhaustion statutory provision did not in fact mean different things.
  15. Justice Alito wondered whether the ADA required a school to provide auxiliary aids regardless of the cost. The DOJ attorney responded in the negative to that because, as we all know, of the undue burden defense.
  16. Justice Alito inquired whether the IDEA may demand certain things that would even be more expensive than what the ADA demands.
  17. Justice Jackson wondered whether forcing people into IDEA to pursue ADA claims due to the IDEA exhaustion statutory provision limited remedies contrary to Congressional intent, which says that the exhaustion requirement in the IDEA is not meant to limit other remedies.
  18. Justice Barrett wondered about the ability to tack on compensatory damages at the end of a request for IDEA relief and whether that would even work.
  19. Justice SotoMayor wondered if there how much parallel litigation currently existed with respect to IDEA and the ADA. The DOJ attorney responded that IDEA relief was the first choice for parents and this parallel litigation is not something seen much.
  20. Justice Kagan wondered whether compensatory relief under title II of the ADA was even available after the Cummings decision. The DOJ attorney said they were not taking a position on that.
  21. Justice Thomas wondered why the school didn’t get a general release when it settled the IDEA claim.
  22. Justice Jackson wondered about the history of the IDEA exhaustion statutory provision in that Congress did not want all claims to go through the IDEA administrative process or they wouldn’t have put in this section a clause about not limiting other remedies.
  23. Chief Justice Roberts wondered whether the denial of a FAPE in an IDEA case constitutes the same harm as in an ADA case.
  24. Justice Kagan wondered how you could possibly be seeking relief under the IDEA if you are also seeking damages.
  25. Justice Jackson wondered whether the legislative history of the IDEA exhaustion provision meant that the statutory provision only applied to cases where the hearing official could grant the relief requested.
  26. Justice Gorsuch wondered if under the school district’s analysis of the case, it meant ADA claims would be prevented unless the IDEA was exhausted first, assuming there was no waiver. The school district attorney agreed with that interpretation of their analysis.
  27. Justice Barrett wondered whether a broad IDEA exhaustion requirement would prohibit ADA claims altogether. Alternatively, whether it would only be a narrow world where ADA claims could be pursued at all under the school district’s analysis of the situation. In response, the attorney for the school district also brought up Cummings and its possible impact under title II of the ADA.
  28. Justice Jackson wondered whether a student would have to exhaust IDEA even if they did not want a FAPE?
  29. Justice Jackson also wondered whether a broad reading of the IDEA exhaustion requirement throws out the refusal to limit other remedies provision also appearing in that statutory provision.
  30. Justice Kagan wondered whether a broad reading of the IDEA exhaustion requirement would force plaintiff to turn down an IDEA settlement in order to pursue an ADA claim.
  31. Justice Kagan wondered if IDEA claims were not going to be the first choice of parents because those claims would get resolved much faster and more inexpensively than any I ADA claim. So, she wondered since parents always go IDEA why would that foreclose the ADA?
  32. Justice Barrett wondered whether a futility exception would not apply in the event of settlement and noted that a majority of the circuits dealing with the question had decided such was the case.
  33. Justice Thomas wondered if the school district’s interpretation of the situation would not require all ADA claims to go through the IDEA exhaustion process first.
  34. Justice Gorsuch wondered why does it even matter that the key focus of the complaint was based on IDEA given the text of IDEA.
  35. Justice Gorsuch wondered if the text of the IDEA is not pretty clear that it’s all about the relief under IDEA as to what is being limited by the exhaustion requirement and not anything else.
  36. Justice Jackson wondered whether what the person is seeking is what really matters. She also wondered whether disability discrimination claims need to be exhausted.
  37. Justice Jackson wondered if under the school district’s analysis, ADA claims would be prohibited if a FAPE was involved absent administrative exhaustion.
  38. Justice Kagan noted that Fry, which we discussed here, did not say anything whether exhaustion would be required if compensatory damages was being sought. In fact, the Court specifically reserved that question for a later time.

 

II

Thoughts/Takeaways on the Oral Argument

 

  1. It is a real dangerous game to predict results of Supreme Court cases based upon the questions asked in oral argument. I have done that before and have often failed in my predictions. I asked a person who had clerked for a federal appellate judge why I kept missing taking that approach. She informed me that the questions asked by federal appellate judges at oral argument should not be taken literally. That is, often those questions are asked for other purposes other than revealing where the specific judge or Justice might be leaning. All this said, it looks like this decision could very well go the way of the student with a disability. It probably helps that the facts are particularly egregious. What I found surprising from the oral argument was that Justice Thomas in particular seemed to be very much leaning in favor of the person with a disability, which is not usually the case with him.
  2. Behind Chief Justice Roberts questions was at least an implicit recognition that a FAPE under the IDEA and a FAPE under §504 are not at all the same thing. The former is based upon a set of goals and the IDEA focusing on specialized instruction, as we will discuss in the other blog entry posted today. The latter is all about getting a person with a disability to the same starting line as a person without a disability. Those two are very different concepts.
  3. Justice Kavanaugh didn’t say anything in the oral argument. So, no way to even guess which way he might be leaning. It is fair to say that Justice Alito was leaning in favor of the school district, which isn’t surprising.
  4. Hard to say about Justice Barrett. In the past, there have been some cases where oral argument suggested that she would leaning on the side of a person with a disability but it didn’t work out that way in the end. It is public knowledge that Justice Barrett has a child with Down syndrome. So, she might be particularly aware of the IDEA. What that awareness means for the case is very hard to say.
  5. There does seem, with the emphasis on “seems”, to be a majority of this court that will decide in favor of the student with a disability. It remains to be seen what the contours of that decision will be. One effect of that decision may mean that school districts will no longer, as many do, be able to insist that persons with disabilities in 504 plans have to go through the same administrative exhaustion process as students with disabilities with IEP’s.
  6. Just how far does Cummings, which we discussed here, go, i.e. whether title II of the ADA prohibits emotional distress damages, is on the mind of some of the Justices.
  7. What really is an IDEA FAPE all about? For the answer to that, please turn to the second blog entry that I am posting today discussing the case of Doe v Knox County Board of Education.

Sometimes you have a blog entry all ready to go in your mind. You are even rehearsing the outline of it in your mind. However, something then intervenes and you feel compelled to blog about something else. This is exactly what happened to me for the blog entry of this week. I had been outlining in my mind how I would approach the oral argument in Perez v. Sturgis Public Schools. There is also a Sixth Circuit case, Doe v. Knox County Board of Education, that goes along with that. However, yesterday the EEOC issued a guidance on hearing disabilities in the workplace and the ADA, here. As a deaf proud person, I had no choice but to blog on that guidance. As I have done before when it comes to guidances, I am going to cut and paste the whole thing. Whenever I have comments on a particular section, I will just put in the term “my thoughts,” so y’all know when I am talking. Also, that paragraph will be in italics. Finally, if “my thoughts,” doesn’t appear at the end of the section, that means I don’t see any flags in that section.

 

One thing you will see over and over again in my comments is why the distinction between deaf and Deaf matters. The document confuses the two frequently and it creates some silliness and distortions, which we will discuss. Just so that everyone is on the same page as to what I mean by the two different terms (which as far as I can tell is the general meaning of the term from my readings over the years as well as interfacing with people in the Deaf community), a deaf individual is someone with a severe to profound hearing loss, 70 decibels and upwards. A Deaf individual is someone with a severe to profound hearing loss, primary language is ASL, and they attended a school for the deaf. Extra bonus points thrown in if a person is deaf genetically. That said, Deaf is also an identity and it is possible someone could be a member of that community without all of the criteria being satisfied, though I do think that person would have to at least be fluent in ASL In my case, my hearing loss is a congenital sensorineural bilateral hearing loss of 70-120 decibels. I also have a family history of hearing loss. However, I never learned ASL, and I never attended a school for the deaf. So, I am deaf Proud but not Deaf Proud. If you want to read a great book that is a manifesto for Deaf Proud, read Nyles Demarco’s Deaf Utopia: A Memoir.

 

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

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Issuing Authority

This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.

OLC Control Number

EEOC-NVTA-2014-1

Concise Display Name

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

Issue Date

01-24-2023

General Topics

ADA/GINA

Summary

This document provides information on how the ADA applies to job applicants and employees with hearing disabilities.

Citation

ADA, Rehabilitation Act, 29 CFR Part 1630

Document Applicant

Employees, Employers, Applicants, HR Practitioners

Previous Revision

Yes. This document revises and renames “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” originally issued 05-07-2014.

Disclaimer

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

Introduction

 

My thoughts: I am glad to see that the term “hearing impairment,” does not appear in this document. In the hearing loss community, we find this term offensive as there is nothing impaired about our hearing. Rather, our hearing just works differently than others (hearing aids, cochlears, or ASL). The terms to use in the hearing loss community are: Deaf, deaf, and hard of hearing.

 

This document, which is one of a series of question-and-answer documents addressing particular disabilities in the workplace,[1] explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. In particular, this document explains:

  • when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures;
  • what types of reasonable accommodations applicants or employees with hearing disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
  • how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA, a federal law that prohibits discrimination against qualified individuals with disabilities. The ADA provides that individuals with disabilities include those who have “a physical or mental impairment that substantially limits one or more major life activities . . . ,” have a record (or history) of a substantially limiting impairment, or are regarded as having such an impairment. This document uses ADA statutory terminology for its legal meaning and to refer inclusively to individuals who are deaf or hard of hearing, as well as those who have other hearing conditions, such as tinnitus and sensitivity to noise. [2]

Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Section 501 of the Rehabilitation Act provides similar protections related to federal employment. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and may provide protections in addition to those available under the ADA.[3]

My thoughts: you absolutely always need to keep in mind relevant state laws.

General Information about Hearing Conditions

Approximately 15 percent of American adults report some trouble hearing.[4] People with a variety of hearing conditions (including deafness, being hard of hearing, experiencing ringing in the ears, or having sensitivity to noise) may have ADA disabilities.

My thoughts: immediately in the document, the EEOC is using deafness with a small d and not realizing that deafness and Deaf are two very different things.

There are many different circumstances that may contribute to individuals becoming deaf, hard of hearing, or experiencing other hearing conditions (including childhood illnesses, pregnancy-related illnesses, injury, heredity, age, and excessive or prolonged exposure to noise).[5] These circumstances can affect the way such individuals experience sound, communicate with others, and view their hearing conditions.[6]  For example, some individuals who develop a hearing condition later in life may not use American Sign Language (ASL) or other common communication methods used by some with hearing conditions or may not use them as proficiently as individuals who are deaf or hard of hearing at birth or from a very young age.

Individuals who are deaf, hard of hearing, or have other hearing conditions can perform successfully on the job and, under the ADA, should not be denied opportunities because of stereotypical assumptions about those conditions. Some employers assume incorrectly that workers with hearing conditions 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 conditions can be effective and safe workers.

My thoughts: stereotypes of hearing loss are a big issue for those of us in the hearing loss community.

  1. When does someone with a hearing condition have a disability within the meaning of the ADA?      

According to the ADA, the definition of “disability” is interpreted broadly in favor of expansive coverage.[7] Under the ADA, individuals with an impairment of hearing will meet the first prong of the ADA’s definition of disability (“actual disability”) if they can show that they are substantially limited in hearing or another major life activity (e.g., the major bodily function of special sense organs).[8] A determination of disability must ignore the positive effects of any mitigating measure that is used.[9]  For example, if someone uses a hearing aid or has a cochlear implant, the benefits of such a device would not be considered when determining if the impairment is substantially limiting.[10] People who are deaf should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of hearing.[11]

My thoughts: small d is used again. Regardless if you are deaf or Deaf, you are going to have an ADA protected disability because you have a physical impairment that substantially limits the major life activity of hearing.

Individuals with a history of an impairment will be covered under the second prong of the ADA definition of disability if they have a record of an impairment that substantially limited a major life activity in the past.[12] An applicant or employee may have a “record of” disability, for example, when the individual’s hearing has been corrected surgically. Finally, an individual is covered under the third (“regarded as”) prong of the ADA definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a hearing condition or because the employer believes the individual has an impairment of hearing, other than an impairment that is not both transitory and minor.

Obtaining, Using, and Disclosing Medical Information

The ADA limits an employer’s ability to ask applicants or employees questions related to disabilities (including hearing disabilities) and to conduct medical examinations. Different rules apply for these inquiries and exams at three distinct stages: pre-offer, post-offer, and during employment.

Job Applicants

Before an Offer of Employment Is Made

  1. May an employer ask whether a job applicant has or had a hearing condition, or treatment related to a hearing condition, prior to making a job offer? 

No. An employer may not ask questions about an applicant’s medical condition[13] or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot ask an applicant such questions as:

  • whether the applicant has ever had any medical procedures related to hearing (for example, whether the applicant has a cochlear implant);
  • whether the applicant uses a hearing aid; or
  • whether the applicant has any condition that affects the applicant’s hearing.

Of course, an employer may ask questions pertaining to the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation, such as:

  • whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment;
  • whether the applicant has good communication skills; or
  • whether the applicant can meet legally mandated safety standards required to perform a job. (My thoughts: you most certainly can ask whether the applicant can meet legally mandated safety standards required to perform a job but those safety standards need to concern the job’s essential functions. Also, the term “legally mandated,” is a critical term because it refers to regulatory requirements and not just something that an employer comes up with). See Justice Thomas’s opinion in Albertson, Inc. v. Kirkingburg, here.
  1. Does the ADA require an applicant to disclose a current or past disability before accepting a job offer?

No. The ADA does not require applicants to disclose that they have or had a hearing disability or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter). Some individuals with a hearing condition, however, choose to disclose or discuss their condition to dispel myths about it or to ensure that employers do not assume that the condition means the person is unable to do the job.

Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job (for example, specialized equipment, removal of a marginal function, or another type of job restructuring). A person with a hearing condition, however, may request an accommodation after becoming an employee even if they did not do so when applying for the job or after receiving the job offer.

My thoughts: after what goes on in a person with a disability’s mind in deciding whether to disclose a disability and seek accommodation, see this Federal Bar Association blog entry.

  1. May an employer ask questions about an obvious hearing condition, or ask follow-up questions if an applicant discloses a non-obvious hearing condition?

No. An employer generally may not ask an applicant about obvious impairments. Nor may an employer ask an applicant who has voluntarily disclosed a hearing condition any questions about its nature or severity, when it began, or how the individual manages the condition. However, if an applicant has an obvious impairment or has voluntarily disclosed the existence of an impairment and the employer reasonably believes that the applicant will require an accommodation to complete the application process, or to perform the job because of the condition, the employer may ask whether the applicant will need an accommodation and what type. The employer must keep any information an applicant discloses about a medical condition confidential. (See “Keeping Medical Information Confidential,” below.)

 

My thoughts: This is very dangerous ground. If a person reveals voluntarily a disability during the course of the interview, asking whether the applicant will need an accommodation and what type can be done but needs to be done very carefully. The last thing you want to do as an employer is turn the interview into a question about whether the disability is being considered rather than the person’s abilities, i.e. whether the person can do the job with or without reasonable accommodations.

Example 1: Julie has a severe hearing condition in her right ear and is applying to the telephone sales department of a clothing company. Julie tells the employer of her hearing condition during the interview. The employer’s sales associates currently wear headsets with earpieces for the right ear. The employer may ask Julie during her interview if she would need a left-sided headset as an accommodation.

My thoughts: See my thoughts immediately above.

After an Offer of Employment Is Made

After making a job offer, an employer may ask questions about the applicant’s health (including questions about the applicant’s disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination). After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information. For example, if an employer asks all applicants post-offer about their general physical and mental health, it can ask individuals who disclose a particular illness, disease, or impairment for medical information or require them to have a medical examination related to the condition disclosed.

  1. What may an employer do when it learns that an applicant has or had a hearing condition after the applicant has been offered a job but before starting work?

When an applicant discloses, after receiving a conditional job offer (italics in original), that the applicant has or had a hearing condition, an employer may ask the applicant additional questions, such as how long the individual has had the hearing condition; what, if any, hearing the applicant has; what specific hearing limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job. The employer also may send the applicant for a follow-up hearing or medical examination or ask the individual to submit medical documentation answering questions specifically designed to assess the applicant’s ability to perform the job’s functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage, when an employer may only ask an applicant who voluntarily discloses a disability or whose disability is obvious whether the individual needs an accommodation either in the application process or to perform the job.

An employer may not withdraw an offer from an applicant with a hearing disability if the individual is able to perform the essential functions of a job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation. (Below, “Accommodating Applicants and Employees” addresses reasonable accommodations (Questions 9 – 15) and “Concerns about Safety” addresses “direct threat” (Questions 16 and 17).)

Example 2: Lydia applies for a position as an aircraft mechanic. After receiving a job offer, she is given a physical examination. The examination reveals that she has a slight hearing loss in her left ear. Although Lydia worked as an aircraft mechanic in a noisy environment with the same level of hearing while she was a member of the military, the employer is concerned that Lydia will pose a risk to herself or others because she may not be able to hear sounds that might alert her to dangers in the work area, such as the presence of moving aircraft or other moving vehicles. The employer may not withdraw the job offer simply because it believes Lydia cannot work safely in a high-noise environment. The employer could only do so if it determined that Lydia’s hearing loss would result in a direct threat (that is, a significant risk of substantial harm to Lydia or to others in the workplace that cannot be eliminated or reduced through reasonable accommodation). The employer may seek additional information about Lydia’s hearing, including how her hearing loss affected her past work experience, to make this determination.

Employees

The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, actual performance is the best measure of ability to do the job.

  1. When may an employer ask an employee if a hearing condition, or some other medical condition, may be causing the employee’s performance problems?

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as difficulties hearing, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.[14]

Example 3: Rupa wears a hearing aid to improve her bilateral, moderate hearing condition. She was recently promoted from an administrative position to sales associate for a cable company. The new position requires significantly more time on the phone interacting with customers. Although Rupa has received excellent reviews in the past, her latest review was unsatisfactory, citing many mistakes in the customer orders she records over the phone. The employer may lawfully ask Rupa if she has any difficulty hearing customers and, if so, whether she would benefit from an accommodation. Possible accommodations could be a captioned telephone that would allow Rupa to communicate verbally while receiving a real-time text relay of the conversation or providing technology that allows Rupa to stream a telephone conversation to her hearing aid.

My thoughts: I would not approach it this way. I would sit the employee down and say something along the lines of, “your performance in this position is not measuring up to what you have done in the past, is there something we can do to help make this better?” Doing it this way, invites the person with a disability to disclose and also allows the employer wiggle room to say that no disclosure was ever made if the person does not take the invitation to disclose. After all, an employer does not have to accommodate a disability it is not aware of. Doing it this way, also lessens the chances of a regarded as claim. Remember, it is up to the person with a disability to disclose that disability. All this said, while I recognize that many disabilities have stigmas associated with them, early disclosure invariably works better for the person with the disability. Finally, the guidance doesn’t define what is a, “moderate hearing condition.”

 

Example 4: An employee with a hearing disability has received below average evaluations for six months, starting when she was not selected for a vacant supervisory position. Moreover, the kinds of performance problems the employee is having—a significant increase in the number of late arrivals and typographical errors in written reports the employee routinely produces—cannot reasonably be attributed to a problem with the employee’s hearing. The employer may not ask for medical information about the employee’s hearing, but instead should counsel the employee about the performance problems or otherwise proceed as appropriate in accordance with its policies applicable to employee performance.

My thoughts: the reasonable accommodation process is all about accommodating a disability so that the person can get to the same starting line as a person without a disability. So, the performance and the disability need to be related. Finally, disability doesn’t trump performance issues.

  1. Are there any other instances when an employer may ask an employee about the employee’s hearing?

Yes. An employer also may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it.

My thoughts: safely performing the essential functions of the job is not the issue as the EEOC covers later in the document. The issue is direct threat, which we have discussed many times in our blog, such as here, and is a high bar to meet.

In addition, an employer may ask an employee about the employee’s hearing to the extent the information is necessary:

  • to support the employee’s request for a reasonable accommodation needed because of a hearing disability;
  • to enable the employee to participate in a voluntary wellness program;[15] or
  • to verify the employee’s use of sick leave related to a hearing condition if the employer requires all employees to submit a doctor’s note to justify their use of sick leave.[16]

Example 5: An employer maintains a leave policy requiring all employees who use sick leave for a medical appointment to submit a doctor’s note upon returning to work. Mark uses sick leave to attend an audiologist appointment to adjust his hearing aids. In accordance with its policy, the employer can require Mark to submit a doctor’s note for his absence; however, it may not require the note to include any additional information (such as the degree of Mark’s hearing loss, the strength of his hearing aids, or the results of the adjustment) if it is not needed to verify that Mark used his sick leave properly.

Keeping Medical Information Confidential

With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose that an employee has a hearing condition:

  • to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions;
  • to first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work;
  • to individuals investigating compliance with the ADA and similar state and local laws; and
  • where needed for workers’ compensation or insurance purposes (for example, to process a claim).
  1. May an employer tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as working at home or working a modified schedule) that the co-worker is receiving a reasonable accommodation?

No. Telling coworkers that an employee is receiving an ADA reasonable accommodation amounts to a disclosure that the employee has a disability.[17] Rather than disclosing that the employee is receiving a reasonable accommodation, the employer may find it helpful to point out that many employee issues are personal and focus on the importance of maintaining the privacy of all employees.[18]

Employers may also be able to avoid many of these kinds of questions by training all employees on the requirements of equal employment laws, including the ADA, and by providing information about reasonable accommodation to all of their employees. Education on reasonable accommodation can be done in a number of ways, such as through written reasonable accommodation procedures, employee handbooks, staff meetings, and periodic online or in-person training. This kind of proactive approach may lead to fewer questions from employees who misperceive co-worker accommodations as “special treatment.”

Example 6: A large store does not provide its sales employees with smartphones. However, the employer does provide a deaf employee with one, as a reasonable accommodation, so that she can receive text messages instead of the numerous communications made over the public address system that she cannot hear, such as requests for sales representatives to report to different parts of the store to assist customers. If other employees ask why only she has a smartphone, the employer may not divulge any information about the impairment, including the fact that the smartphone is a reasonable accommodation.

Accommodating Applicants and Employees

The ADA requires employers to provide adjustments or modifications—called reasonable accommodations—to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability. Not all applicants or employees with a hearing condition will need an accommodation or require the same accommodations.

My thoughts: undue hardship can either be financial, which is incredibly difficult to show, or logistical (think title II and title III concept of fundamental alteration). The very last sentence of this paragraph is incredibly important as it is most certainly the case that not everyone with a hearing condition will need an accommodation or require the same accommodations. I see this mistake made all the time when it comes to hotels accommodating Deaf, deaf, and hard of hearing individuals.

  1. What type of reasonable accommodations may applicants or employees with hearing disabilities need?

Some applicants or employees may need one or more of the following accommodations:

A sign language interpreter.

Example 7:  Based on Shawn’s online application and score on an initial assessment questionnaire, a manager contacts Shawn to schedule an in-person interview. Shawn requests that the employer provide an American Sign Language (ASL) interpreter for the interview. Absent undue hardship, the employer’s ADA obligation is to provide an ASL interpreter (in person or through a video remote interpreting service) for Shawn’s interview as a reasonable accommodation in the application process. (For more information about “reasonable accommodations” for applicants, see Question 14, below.)

 

Example 8: Simon has a hearing disability and works as a project manager for a regional telephone company. Simon is usually able to use his lip-reading ability to communicate individually with his co-workers. However, Simon occasionally requests a sign language interpreter for large-group conferences and meetings, because it is not possible for him to use lip-reading when people who are not in his line of sight are speaking. Simon’s employer would have to provide the sign language interpreter (in person or through a video remote interpreting service) as a reasonable accommodation, absent undue hardship. (For more information about “undue hardship,” see Question 12, below.)

My thoughts: example 8 unfortunately doesn’t make a lot of sense. The example talks about a person who needs an ASL interpreter for large group conferences but yet also relies on lipreading. It is possible that such a person exists but it would not happen frequently. A user of ASL who grows up on ASL where ASL is his or her or they first language is unlikely to be great at lipreading since ASL and English are not at all the same in their structure. It is also a stereotype that Deaf and deaf individuals are excellent lip readers. It is much more likely that a deaf or hard of hearing individual would lipread effectively than it is that a Deaf individual would lipread effectively. Finally, even the best lip reader, which I am one of as is my daughter, will only get 50% of what is said on the lips.

Assistive technology, including:

  • Access to a video relay service or video remote interpreting service using equipment such as a videophone, computer, laptop, tablet, or smartphone.
  • A hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants.
  • Appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers).
  • Enabling the streaming of sound directly from a device to hearing aids or cochlear implants.
  • Utilizing accessibility features of mainstream technology (for example, using the captioning feature on virtual meeting platforms).
  • A voice carry-over telephone, captioned telephone, text telephone, or TTY.[19]
  • Equipment used for hearing protection to block noise or to protect hearing function, including equipment that can be used with hearing aids.
  • Assistive software or applications (for example, for automated captioning, voice recognition, videoconferencing, or sound detection).

Example 9: Allen, who has a hearing disability, works as an information technology (IT) specialist with a small, internet-advertising firm. The IT specialist position requires frequent one-on-one meetings with the firm’s president. Because it will not cause an undue hardship, the firm accommodates Allen by acquiring voice recognition or automated captioning software for him to use in his meetings like concepts with the president. The software is programmed to transcribe spoken words into written electronic text.

My thoughts: I am not sure I understand the reference to voice recognition software, which I use all the time, but it doesn’t have anything to do with my hearing loss. With respect to automatic captioning software (which goes by the term ASR-automatic speech recognition), that can be very helpful. Keep in mind, that should technical terms or accents be involved, ASR will not be all that effective. In that situation, you may need to go with CART services.

  • Assistive listening devices (ALDs).

Example 10: An employer has an annual all-employee meeting for more than 200 employees. Thelma, who has a hearing disability, requests the use of an ALD in the form of a personal FM system. Speakers would wear small microphones that would transmit amplified sounds directly to a receiver in Thelma’s ear. The employer determines that an ALD is a reasonable accommodation that will allow Thelma to participate in the meeting without causing an undue hardship.

My thoughts: depending upon the hearing devices used, assistive listening devices are going to vary considerably in terms of how successful they will be for a particular individual with a hearing loss.

  • 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.

Example 11: Kendall works as an associate for an international consulting firm. Kendall has a hearing disability for which he uses a hearing aid and lip reading. His company sometimes conducts video-conferencing meetings with clients in other countries. During these meetings, Kendall finds it difficult to participate because the video feedback is not continuous. Kendall requests the use of remote CART services as an accommodation during international client meetings. The requested accommodation would translate the client’s spoken word on Kendall’s notebook computer monitor at real-time speed. This accommodation would allow Kendall to participate fully in the meetings and should be provided, absent undue hardship.

My thoughts: see my above comments about automatic speech recognition and CART.

Appropriate written memos and notes (especially used for brief, simple, or routine communications).

Note-taking assistance for those using CART services or sign language interpretation (to allow individuals using CART services or sign language interpretation to remain focused on translations).

Work area adjustments (for example, a desk away from a noisy area or near an emergency alarm with strobe lighting).

Example 12: Ann works as an accountant in a large firm located in a high-rise building. Ann has a large window in her office that faces the street-side of the building. She wears a hearing aid to mitigate her severe hearing condition. Throughout the workday many exterior noises (for example, police sirens, car horns, and street musicians) are amplified by Ann’s hearing aid and interfere with her ability to hear people speaking in her office. Ann requests, and her employer agrees, that moving her to a vacant interior office is a reasonable accommodation without causing an undue hardship.

My thoughts: digital hearing aids today are programmable. It is certainly possible that for many hearing aid users that a program could be developed by his or her or they audiologist so that background noise can be phased out.

Time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable.[20]

Example 13: Beth is deaf and requests leave as a reasonable accommodation to train a new hearing dog. Hearing dogs assist deaf and hard of hearing individuals by providing alerts to a variety of household and workplace sounds such as a telephone ring, door knock or doorbell, alarm clock, buzzer, name call, speaker announcement, and smoke or fire alarm. A hearing dog is trained to make physical contact and direct a person to the source of the sound. Under Beth’s employer’s leave policy, Beth does not have enough annual or sick leave to cover the requested absence. The employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship.

My thoughts: small d used here when both deaf and Deaf should have been used. As everyone knows, I have a hearing dog. Keep in mind, it is not unusual for hearing dogs to be home-based and not used outside the residence.

Altering an employee’s marginal (that is, non-essential) job functions.

Example 14: Manny, a librarian, is primarily responsible for cataloguing books, writing book summaries, and scheduling book tours. Recently, Manny has had to fill in as a desk librarian since the regular librarian is on vacation. Manny has a hearing disability and uses a hearing aid. Manny finds it difficult to hear patrons if there is any background noise. He asks to switch his front desk duties with another librarian who processes book orders transmitted over the phone or internet. Since working at the front desk is a minor function of Manny’s job, the employer should accommodate the change in job duties, absent undue hardship.

My thoughts: no two hearing losses are dealt with in the same way. The ADA requires an individualized analysis and that is especially important when dealing with hearing loss.

Reassignment to a vacant position.

Example 15: Sonny, a stocking clerk on the floor of a large grocery store, develops Ménière’s disease, which produces a loud roaring noise in his ears for long periods of time. It is difficult for him to hear customers and co-workers on the floor because of music and frequent announcements played over the store’s public address system and background noise in the store, particularly during busy periods. The store manager tried several unsuccessful accommodations. Upon request, the employer should reassign Sonny to a vacant position as a stocking clerk in the warehouse at the same location, absent undue hardship. The employee is qualified for the reassignment position and the warehouse is a quieter environment with fewer background sounds.

My thoughts: the jurisprudence involving mandatory reassignment, which we have discussed numerous times in our blog, such as here, is all over the place. The jurisprudence is consistent that reassignment is an option of last resort. After that, there can be considerable differences (compare the Seventh Circuit with the 11th circuit).

Other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

Example 16: Maria is hired as a chemist for a pharmaceutical company. She communicates primarily through sign language and lip reading due to a hearing disability. Shortly after she is hired, she is required to attend a two-hour orientation meeting. The meeting includes a brief lecture session followed by a series of video vignettes to illustrate key concepts. As an accommodation, Maria requests a seat near the trainer, closed captioning during the video segments, and adequate lighting to allow her to read lips throughout the meeting. There is no undue hardship and the employer grants these reasonable accommodations to allow Maria to participate fully during the orientation session.

Although these are some examples of the types of accommodations commonly requested by employees with hearing conditions, other employees may need different changes or adjustments.[21]  Employers should ask the particular employee requesting an accommodation what is needed that will help the employee do the job. There also are extensive public and private resources to help employers identify reasonable accommodations. For example, the Job Accommodation Network (JAN) is a free, confidential service that provides information about many types of accommodations for applicants and employees with disabilities based on the needs of a given individual and workplace.

My thoughts: as I mentioned above, it would be unusual for an individual to communicate primarily through sign language and lip reading, though it could happen. Also, don’t forget about the interactive process.

 

  1. How does an applicant or employee request a reasonable accommodation?

There are no “magic words” that a person has to use when requesting a reasonable accommodation. A person simply has to tell the employer that the individual needs an adjustment or change at work because of an impairment.

My thoughts: this is not the standard I would use. I agree that no magic words are required. However, the interactive process obligation is triggered the minute an employer knows that a disability exists that may need accommodations. Such notification can be communicated to an employer in a myriad of different ways. Be very cautious about taking the statement above that “a person simply have to tell the employer that the individual needs an adjustment or change at work because of an impairment,” literally or you will run yourself into magic words litigation. See also this blog entry.

A request for reasonable accommodation also can come from a family member, friend, health professional, or other representative on behalf of a person with a disability. If an employer requires more information about the disability and why an accommodation is needed, it should engage in an “interactive process”—a dialogue with the applicant or employee—to obtain information that will help the employer in handling the request.

Applicants and employees may find it helpful to discuss any necessary accommodations with the employer prior to starting a new position or assuming new job duties, even if an accommodation was provided during the job application process or in a previous position. Similarly, employers may, as a best practice, inform all new hires post-offer that they may request any needed accommodation in advance of their start date or once on the job.

My thoughts: it is always best for the employer to have the person with a disability lead when it comes to seeking accommodations.

Example 17: Liona has a hearing disability and is employed as an electrician. As a team leader, Liona is responsible for receiving her team’s list of daily work sites and any accompanying special instructions, traveling to the sites with her team, and directing the day’s work at each site. Liona receives the list of assignments and accompanying special instructions from the company owner during daily morning meetings attended by all of the team leaders. The special instructions are given orally. One morning, at the conclusion of a team leader meeting, Liona passes a note to the owner reminding the owner of her difficulty hearing and requesting that all special instructions for the team’s assignments be written down because she is having difficulty hearing them. Liona has requested a reasonable accommodation.

  1. May an employer request documentation when an applicant or employee requests a reasonable accommodation?

Sometimes. When a person’s hearing condition is not obvious, the employer may ask the person to provide reasonable documentation about how the condition limits major life activities (that is, whether the person has a disability) and why a reasonable accommodation is needed. An employer, however, is entitled only to documentation sufficient to establish that the individual has a hearing disability and to explain why an accommodation is needed. A request for an individual’s entire medical record, for example, would be inappropriate, as it likely would include information about conditions other than the individual’s hearing.[22]

Example 18: Luíz, who has a hearing disability and communicates primarily through lip reading and speech, works as a programmer for an internet security firm. The firm acquires a new client and promotes Luíz to be the senior programmer responsible for all consultations regarding the internet security system design for the new client. Luíz’s new assignment requires frequent phone conversations and teleconference meetings that do not allow for the use of Luíz’s lip reading skills to aid in his verbal comprehension. As a result, Luíz’s audiologist recommends, and Luíz requests, the use of a voice carry-over phone, which would provide an almost real-time text relay of the client’s speech and also allow the client to hear Luíz. Because Luíz’s impairment is not an obvious disability, his employer may lawfully request medical documentation to verify his disability.

My thoughts: this “obvious,” piece comes up quite a bit. For example, in the service animal area, the DOJ regulations make this a critical question before you can make two inquiries to establish whether the animal is a service animal. In the employment context, obviousness drives the amount of documentation you can request and is not a prerequisite before you can make any request at all.

 

  1. Does an employer have to grant every request for a reasonable accommodation?

No. An employer does not have to provide an accommodation if doing so would be an undue hardship. Undue hardship means that providing the reasonable accommodation will result in significant difficulty or expense. An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property). Nor do employers have to provide employees with personal use items, such as hearing aids or other devices that are used both on and off the job.

My thoughts: personal devices are not a reasonable accommodation obligation of the employer.

If more than one accommodation would be effective, the employee’s preference should be given primary consideration, although the employer is not required to provide the employee’s first choice of reasonable accommodation. If a requested accommodation is too difficult or expensive, an employer may choose to provide an easier or less costly accommodation as long as it is effective in meeting the employee’s needs.

My thoughts: “too difficult or expensive,” is not the standard. The standard is undue hardship, which can be either logistical or financial. With respect to financial, I can literally count on one hand the number of cases that I have read over the years that found a financial undue hardship.

Example 19: An employee with a bilateral hearing disability requests use of communication access real-time translation (CART) for an upcoming training. In place of the CART device, the employer suggests an assistive listening device (ALD) because it is less expensive than CART. Twelve managers and supervisors are scheduled to take the training in a conference room at the employer’s offices. Much of the information will be presented in a lecture format, accompanied by slides with printed information. The size of the room, the number of participants in the training, and the format of the training make it possible for the employee to use a portable assistive listening system effectively. The employer may, therefore, provide an ALD instead of CART under these circumstances.

My thoughts: if there is ever an example why understanding the distinction between Deaf, deaf, and hard of hearing matters, it is this example. The problem is that we have no idea of the severity of this employee’s bilateral hearing disability. The severity of the hearing loss matters a great deal with respect to what accommodation is requested. Depending on the answer to that question, it is entirely possible that an assistive listening device will not work at all for a particular individual in this context. To suggest that it would ignores how hearing loss actually works among individuals.

 

Example 20: A deaf employee requests a sign language interpreter for regular staff meetings. The employer suggests that a co-worker could take notes and share them with the deaf employee or that a summary of the meeting could be prepared. These alternatives are not effective because they do not allow the deaf employee to ask questions and participate in discussions during the meetings as other employees do. Absent undue hardship, the employer must provide a sign language interpreter (in person or through a video remote interpreting service) for the meetings.

My thoughts: small d. Also, the EEOC in this example references the need for communication to be effective. The EEOC does not contain any effective communication rules. As we have discussed many times in the blog, the DOJ does contain effective communication rules for title II entities and title III entities. As we have also discussed, such as here, the effective communication rules are not the same for title II entities and four title III entities. All this said, an employee with a hearing loss is inevitably dealing with effective communication, so as a preventive law matter, the employer may very well want to consider utilizing the effective communication rules of title II for guidance. Taking that approach will likely prevent a lot of successful lawsuits against the company.

  1. May an employer be required to provide more than one accommodation for the same applicant or employee?

Yes. The duty to provide a reasonable accommodation is an ongoing one. Although some applicants or employees with a disability may require only one reasonable accommodation, others may need more than one. An employer must consider each request for a reasonable accommodation and determine whether it would be effective and whether providing it would pose an undue hardship.

Example 21: A deaf employee can communicate effectively with her supervisor by lip-reading and with written notes. The employee wants to attend a three-day training program that will involve extensive communication between participants and the instructor and among participants themselves. The employee requests CART— communication access real-time translation—for the training. The employer may explore whether another form of reasonable accommodation—for example, a sign language interpreter—would be effective. But, the employer must provide the CART service or another effective form of reasonable accommodation, absent undue hardship, since lip-reading and exchanging occasional notes will not enable the employee to participate fully in the training.

My thoughts: small d. It is extraordinarily hard for me to believe that effective communication could ever occur with a Deaf employee through the use of notes and lipreading. See this blog entry for example. It is not unusual at all for a Deaf, culturally deaf individual, to not read beyond a fourth grade reading level It is far more likely that the effective communication in this situation will be done through an ASL interpreter. Finally, videoconferencing platforms have come a long way with respect to accommodating those in the hearing loss community. For example, the automatic speech recognition has gotten quite good, though its accuracy may vary from platform to platform. Also, the platforms are now including the ability of ASL interpreters to have their own window on the call. While the example uses a small d, I still find it extraordinarily hard for me to believe that effective communication for a deaf individual could be done this way. Finally, see my thoughts immediately above with respect to the DOJ effective communication rules and how they can be used as a guideline.

  1. Does an employer have to provide a reasonable accommodation to an applicant with a disability during the application process even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job?

Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless the employer can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.[23]

My thoughts: I completely agree with this. However, there is some awful case law out there that we have discussed in the blog, such as here, that might disagree with this.

Example 22: An employer is impressed with an applicant’s resume and contacts the individual to come in for an interview. The applicant, who is deaf, requests a sign language interpreter for the interview. The employer cancels the interview and refuses to consider this applicant further because it believes it would have to hire a full-time interpreter. The employer has violated the ADA. The employer should have proceeded with the interview, using a sign language interpreter (in person or through a video remote interpreting service), absent undue hardship, and at the interview inquired to what extent the individual would need a sign language interpreter to perform any essential functions requiring communication with other people.

By contrast, if the employer provides a requested sign language interpreter and the applicant fails a test that is a requirement of the application process, and the poor performance is unrelated to the deafness, the employer does not have to provide any further reasonable accommodations for this individual because the individual is no longer qualified to continue with the application process.[24]

My thoughts: small d when capital D is likely intended. We discussed this hypothetical in an actual case in this blog entry where Johns Hopkins University lost big time. Also, be advised that the Deaf community absolutely cannot stand video remote interpreting services.  

  1. 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 accommodations that are necessary to provide individuals with disabilities access to facilities or portions of facilities to which all employees are granted access (for example, employee break rooms and cafeterias), access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.

My thoughts: the reasonable accommodation obligation absolutely extend to the benefits and privileges of employment. See this case for example, which we discussed here.

Example 23: Karin, who is deaf, works as an associate in a large investment firm. Every December, the partner in charge of the team for which Karin works holds a party at his residence for all of the team’s members and a number of the firm’s clients. Upon Karin’s request, her employer provides her a sign language interpreter to allow Karin to fully participate in the social event.

My thoughts: this example obviously concerns an individual who is Deaf and not deaf.

An employer will not be excused from providing an employee with a disability with a necessary accommodation because the employer has contracted with another entity to conduct the event.

Example 24: An employer offers its employees a training course on organization and time management provided by a local company with which the employer has contracted. An employee who is deaf wants to take the course and asks for CART services or a sign language interpreter. The employer claims that the company conducting the training is responsible for providing what the deaf employee needs, but the company responds that the responsibility is the employer’s. Even if the company conducting the training has an obligation, under Title III of the ADA,[25] to provide “auxiliary aids and services,” which could include CART services and sign language interpreters, this fact would not alter the employer’s obligation to provide the employee with a reasonable accommodation for the training.[26]

My thoughts: in other words, what the EEOC is saying here is that the ADA is a nondelegable duty, which we discussed here.

Concerns About Safety

When it comes to safety concerns, an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing conditions. Instead, the employer should evaluate an individual on the individual’s skills, knowledge, experience, and how the hearing condition affects the individual.

  1. When may an employer refuse to hire, terminate, or temporarily restrict the duties of a person who has or had a hearing disability because of safety concerns?

An employer only may exclude an individual with a hearing disability from a job for safety reasons when the individual poses a direct threat. A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.[27] An employer should conduct an individualized “direct threat” assessment of an individual’s present ability to safely perform the essential functions of the job.[28] This determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In making a direct threat assessment, the employer must consider:

(1)   the duration of the risk;

(2)   the nature and severity of the potential harm;

(3)   the likelihood that the potential harm will occur; and

(4)   the imminence of the potential harm.[29]

The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.[30]

My thoughts: as you can see from #16, direct threat and safety are not at all the same things.

Example 25: A school district denies an applicant with a hearing disability a job as a school bus driver for elementary school students, believing that she will not be able to drive safely and will not be able to monitor students, especially in the event of a medical or other emergency. The applicant has a clean driving record and has previously performed jobs transporting elderly patients by van to doctor’s appointments and social events. Based on past experiences with accommodations, the applicant could monitor students effectively—and without compromising her driving—if an additional mirror highlighting the rear of the bus were installed. The mirror, placed above the driver, would allow her to better monitor students whose conversations she may not be able to hear or understand as well as those students located in the front of the bus. Under these circumstances, the school district cannot demonstrate that this applicant would pose a direct threat to the safety of others, and its refusal to hire her would violate the ADA.[31]

 

Example 26: An employee with a hearing disability requests training to operate a forklift at a large hardware store. For safety reasons, the employer requires that forklift operators be able to communicate with a spotter employee while operating the machine. The employee and the employer contact the JAN, which suggests that they explore whether the employee could be accommodated using a visual alert on a smartwatch, a vibrating pager with a light signal, or a smartphone or tablet on a dashboard mount to allow communication with the spotter. If the employer determines that there is a reasonable accommodation that does not pose an undue hardship, based on the facts of the specific work setting and tasks, it must provide the accommodation and allow the employee training on the forklift. If no reasonable accommodation can be provided absent undue hardship, the employer may deny the employee training on a forklift.[32]

My thoughts: JAN is a great resource.

  1. What should an employer do when another federal law prohibits it from hiring individuals with a hearing condition for particular positions?

If a federal law prohibits an employer from hiring a person with a hearing condition for a particular position, the employer is not liable under the ADA. The employer should be certain, however, that compliance with the law actually is required, not voluntary. The employer also should be sure that the law does not contain any exceptions or waivers.

Example 27: Terry has a severe hearing condition that is slightly improved by her cochlear implant. She applies for a position driving large trucks. These positions are subject to hearing requirements and other standards enforced by the Department of Transportation (DOT), and Terry has not obtained an exemption from the DOT from its hearing requirements. The employer may rely on DOT’s hearing requirement in denying Terry employment. However, the employer may not rely on the DOT hearing requirement to exclude Terry from a position driving smaller trucks, which are not subject to DOT’s standards. Instead, the employer would have to establish that Terry would pose a direct threat, within the meaning of the ADA, if it denied her a position driving smaller trucks because of a hearing disability.

My thoughts: see Justice Thomas’s opinion in Kirkingberg v. Albertsons, Inc., here.

Harassment

The ADA prohibits harassment, or offensive conduct, based on disability just as other federal laws prohibit harassment based on race, sex, color, national origin, religion, age, and genetic information. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Example 28: Leonard works as a stocker at a local electronics store. Leonard lost his hearing two years ago as the result of a rare and debilitating illness. Since Leonard’s recovery and return to work, his co-workers have constantly taunted him about his condition and recklessly driven the forklift near him while yelling for him to move. The employees know that Leonard cannot hear their warnings and often laugh at Leonard’s startled reaction when he sees the forklift approaching him. Leonard complains to his supervisor in accordance with his employer’s anti-harassment policy. The employer must promptly investigate and address the harassing behavior.

My thought: absolutely!

  1. What should employers do to prevent and correct harassment?

Employers should make clear that they will not tolerate harassment based on disability or on any other protected basis. This can be done in a number of ways, such as through a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager. Finally, the employer 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 all of the EEO laws, see EEOC’s Harassment webpage.

Retaliation and Interference

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 investigation, proceeding, or litigation related to a charge of employment discrimination. It is also unlawful for an employer to retaliate against someone for requesting a reasonable accommodation, or to interfere with the exercise of ADA rights. Persons who believe that they have been retaliated against or subjected to ADA interference may file a charge as described below.

My thoughts: don’t forget about interference, which we discussed here.

How to File a Charge of Employment Discrimination

Against Private Employers and State/Local Governments

If you believe that your employment-related ADA rights may have been violated, the EEOC can help you decide what to do next. For example, if the employer refuses to consider your request for a reasonable accommodation to complete an application process or perform your job, and if you think you would be able to do the job with a reasonable accommodation, you might consider filing a charge of discrimination with the EEOC. A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws.

If you file a charge of discrimination, the EEOC will conduct an investigation. Mediation, which is an informal and confidential way for people to resolve disputes with the help of a neutral mediator, may also be available. Because you must file an EEOC charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is covered by a state or local employment discrimination law), it is best to begin the process early. It is unlawful for an employer to retaliate against you for contacting the EEOC or filing a charge.

If you would like to begin the process of filing a charge, go to our EEOC Online Public Portal,  contact your local EEOC office (contact information available on the local office page), or contact us by phone at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone).

My thoughts: with respect to state or local governments, you absolutely want to file with the EEOC. Keep in mind, that should the weight of the federal government come in, it will be the DOJ and not the EEOC that will prosecute a case against the state or local governmental entity.

Against the Federal Government

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by contacting the office responsible for the agency’s EEO complaints program. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or though ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late). If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation. When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred. A detailed description of the federal sector EEO process is available on our website.

If you require language assistance (such as a sign language interpreter or assistive technology) to file a complaint, participate in an EEOC investigation, or as part of an EEOC hearing process, you should submit a request to your agency for assistance. It will then be the responsibility of the responding agency to provide needed language assistance.

This information is not new policy; rather, this document applies principles already established in the ADA’s statutory and regulatory provisions as well as previously issued guidance. The contents of this publication do not have the force and effect of law and are not meant to bind the public in any way. This publication is intended only to provide clarity to the public regarding existing requirements under the law. As with any charge of discrimination filed with the EEOC, the Commission will evaluate alleged ADA violations based on the facts and circumstances of the particular matter and applicable legal principles.

My thoughts:The Trump administration started this disclaimer. It is absolutely accurate in light of the case we discussed here, Kisor v. Wilkie.

 

[1] See EEOC Disability-Related Publications and People with Certain Types of Health Conditions/Disabilities.

[2] The ADA uses terminology that has specific legal meanings. Two central ADA terms are “disability” and “impairment.”

On the issue of self-identification, the National Association of the Deaf (NAD) states that:

The deaf and hard of hearing community is diverse.  There are variations in how a person becomes deaf or hard of hearing, level of hearing, age of onset, educational background, communication methods, and cultural identity.  How people “label” or identify themselves is personal and may reflect identification with the deaf and hard of hearing community, the degree to which they can hear, or the relative age of onset.

See National Association of the Deaf (NAD), Community and Culture–Frequently Asked Questions, (last accessed January 17, 2023).

In addition, NAD addresses particular labels that often are favored or disfavored. In this document, EEOC does not use the terms that NAD indicates are most often disfavored, including the term “hearing impaired.” However, to ensure consistency with the ADA definition of disability, which incorporates references to physical “impairment,” this document uses the terms “disability” and “impairment” as necessary as a legal matter.

[3] For example, disability laws in California, Pennsylvania, New Jersey, New York, and a number of other states apply to employers with fewer than 15 employees.

[4] See National Institute on Deafness and Other Communication Disorders, Quick Statistics About Hearing (citing to CDC report) (last accessed January 17, 2023).

[5] See Note 2, above.

[6] Id.

[7] The definition of “disability” is construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA, and the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. 29 C.F.R. § 1630.1(c)(4).

[8] See 29 C.F.R. §1630.2(i)(1)(ii).

[9] 42 U.S.C. § 12102(4)(E).

[10] Id.; 29 C.F.R. § 1630.2(j)(5)(i).

[11] 29 CFR 1630.2(j)(3)(iii).

[12] 29 C.F.R. § 1630.2(k).

[13] Federal contractors are required under 41 C.F.R. § 60-741.42, a regulation issued by the Office of Federal Contract Compliance Programs (OFCCP), to invite applicants to voluntarily self-identify as persons with disabilities for affirmative action purposes. The ADA prohibition on asking applicants about medical conditions at the pre-offer stage does not prevent federal contractors from complying with the OFCCP’s regulation. See Letter from Peggy R. Mastroianni, EEOC Legal Counsel, to Patricia A. Shiu, Director of OFCCP (Aug. 8, 2013)(last accessed January 18, 2023).

[14] An employer also may ask an employee about the employee’s hearing or send the employee for a medical examination when it reasonably believes the employee may pose a direct threat because of an impairment. See “Concerns About Safety.”

[15] The ADA allows employers to conduct voluntary medical examinations and activities, including obtaining voluntary medical histories, which are part of an employee wellness program (such as a smoking cessation program), as long as any medical records (including, for example, the results of any diagnostic tests) acquired as part of the program are kept confidential. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA at Question 22.

[16] An employer also may ask an employee for periodic updates on the employee’s condition if the employee has taken leave and has not provided an exact or fairly specific date of return or has requested leave in addition to that already granted. Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health without violating the ADA.

[17] An employer’s attempt to indirectly advise an employee’s colleagues that the employee is receiving a reasonable accommodation (by, for example, telling an employee’s colleagues that the ADA requires the employer to make changes for that employee) may also amount to a disclosure that the employee has a disability.

[18] See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA at Question 42.

[19] A text telephone or teletypewriter (TTY) allows a telephone user to send typed messages to another caller and to receive typewritten messages from the caller either directly (if the caller is also using a TTY) or through a telephone relay service (TRS) operator. A voice carry-over telephone allows someone with a hearing condition to communicate orally over the telephone and to receive text communications from the other caller that are transcribed by a TRS operator. A captioned telephone allows users with hearing conditions to receive communications over the telephone orally while receiving an almost simultaneous text translation.

[20] For more information regarding an employer’s responsibility to provide leave for covered individuals, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Questions 17 – 21 (2002); Employer-Provided Leave and the Americans with Disabilities Act (2016).

[21] For information on specific accommodation ideas for different types of limitations, see the Job Accommodation Network’s Searchable Online Accommodation Resource (SOAR)(last accessed January 17, 2023).  JAN can also be reached at 800-526-7234 (Voice) or 877-781-9403 (TTY).

[22] Requests for documentation to support a request for accommodation may violate Title II of the Genetic Information Nondiscrimination Act (GINA) where they are likely to result in the acquisition of genetic information, including family medical history. 29 C.F.R. §1635.8(a). For this reason, employers may want to include a warning in the request for documentation that the employee or the employee’s doctor should not provide genetic information. Id. at 1635.8(b)(1)(i)(B).

[23] Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Question 13.

[24] Id. at Question 13, Examples A & B.

[25] In an effort to eliminate discrimination against individuals with disabilities, Title III of the ADA requires businesses and non-profit organizations that are public accommodations to comply with basic nondiscrimination and building accessibility requirements, provide reasonable modifications to policies and practices, and supply auxiliary aids (for example, assistive listening devices) to ensure effective communication with persons with disabilities. For more information on the requirements of Title III of the ADA, visit the website for the U.S. Department of Justice, Civil Rights Division, Disability Rights Section (last accessed January 17, 2023).

[26] An employer should include, as part of any contract with an entity that conducts training, provisions that allocate responsibility for providing reasonable accommodations. This can help to avoid conflicts or confusion that could arise and result in an employee being denied a training opportunity. An employer should also remember, however, that it remains responsible for providing a reasonable accommodation that an employee needs to take advantage of a training opportunity, regardless of how that responsibility has been allocated in the contract.

[27] 29 C.F.R. § 1630.2(r).

[28] Id.

[29] Id.

[30] Id.

[31] See Rizzo v. Children’s World Learning Center, 213 F.3d 209 (5th Cir. 2000).

[32] See Job Accommodation Network’s Accommodation and Compliance: Hearing Impairment  (last accessed January 17, 2023), describing a process for determining if a particular accommodation would meet employer and employee needs and providing links to specific accommodation ideas for different types of hearing conditions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

you have a blog entry all ready to go in your mind. You are even rehearsing the outline of it in your mind. However, something then intervenes and you feel compelled to blog about something else. This is exactly what happened to me for the blog entry of this week. I had been outlining in my mind how I would approach the oral argument in Perez v. Sturgis Public Schools. There is also a Sixth Circuit case, Doe v. Knox County Board of Education, that goes along with that. However, yesterday the EEOC issued a guidance on hearing disabilities in the workplace and the ADA, here. As a deaf proud person, I had no choice but to blog on that guidance. As I have done before when it comes to guidances, I am going to cut and paste the whole thing. Whenever I have comments on a particular section, I will just put in the term “my thoughts,” so y’all know when I am talking. Also, that paragraph will be in italics. Finally, if “my thoughts,” doesn’t appear at the end of the section, that means I don’t see any flags in that section.

 

One thing you will see over and over again in my comments is why the distinction between deaf and Deaf matters. The document confuses the two frequently and it creates some silliness and distortions, which we will discuss. Just so that everyone is on the same page as to what I mean by the two different terms (which as far as I can tell is the general meaning of the term from my readings over the years as well as interfacing with people in the Deaf community), a deaf individual is someone with a severe to profound hearing loss, 70 decibels and upwards. A Deaf individual is someone with a severe to profound hearing loss, primary language is ASL, and they attended a school for the deaf. Extra bonus points thrown in if a person is deaf genetically. That said, Deaf is also an identity and it is possible someone could be a member of that community without all of the criteria being satisfied, though I do think that person would have to at least be fluent in ASL In my case, my hearing loss is a congenital sensorineural bilateral hearing loss of 70-120 decibels. I also have a family history of hearing loss. However, I never learned ASL, and I never attended a school for the deaf. So, I am deaf Proud but not Deaf Proud. If you want to read a great book that is a manifesto for Deaf Proud, read Nyles Demarco’s Deaf Utopia: A Memoir.

 

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

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Issuing Authority

This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.

OLC Control Number

EEOC-NVTA-2014-1

Concise Display Name

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

Issue Date

01-24-2023

General Topics

ADA/GINA

Summary

This document provides information on how the ADA applies to job applicants and employees with hearing disabilities.

Citation

ADA, Rehabilitation Act, 29 CFR Part 1630

Document Applicant

Employees, Employers, Applicants, HR Practitioners

Previous Revision

Yes. This document revises and renames “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” originally issued 05-07-2014.

Disclaimer

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

Introduction

 

My thoughts: I am glad to see that the term “hearing impairment,” does not appear in this document. In the hearing loss community, we find this term offensive as there is nothing impaired about our hearing. Rather, our hearing just works differently than others (hearing aids, cochlears, or ASL). The terms to use in the hearing loss community are: Deaf, deaf, and hard of hearing.

 

This document, which is one of a series of question-and-answer documents addressing particular disabilities in the workplace,[1] explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. In particular, this document explains:

  • when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures;
  • what types of reasonable accommodations applicants or employees with hearing disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
  • how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA, a federal law that prohibits discrimination against qualified individuals with disabilities. The ADA provides that individuals with disabilities include those who have “a physical or mental impairment that substantially limits one or more major life activities . . . ,” have a record (or history) of a substantially limiting impairment, or are regarded as having such an impairment. This document uses ADA statutory terminology for its legal meaning and to refer inclusively to individuals who are deaf or hard of hearing, as well as those who have other hearing conditions, such as tinnitus and sensitivity to noise. [2]

Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Section 501 of the Rehabilitation Act provides similar protections related to federal employment. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and may provide protections in addition to those available under the ADA.[3]

My thoughts: you absolutely always need to keep in mind relevant state laws.

General Information about Hearing Conditions

Approximately 15 percent of American adults report some trouble hearing.[4] People with a variety of hearing conditions (including deafness, being hard of hearing, experiencing ringing in the ears, or having sensitivity to noise) may have ADA disabilities.

My thoughts: immediately in the document, the EEOC is using deafness with a small d and not realizing that deafness and Deaf are two very different things.

There are many different circumstances that may contribute to individuals becoming deaf, hard of hearing, or experiencing other hearing conditions (including childhood illnesses, pregnancy-related illnesses, injury, heredity, age, and excessive or prolonged exposure to noise).[5] These circumstances can affect the way such individuals experience sound, communicate with others, and view their hearing conditions.[6]  For example, some individuals who develop a hearing condition later in life may not use American Sign Language (ASL) or other common communication methods used by some with hearing conditions or may not use them as proficiently as individuals who are deaf or hard of hearing at birth or from a very young age.

Individuals who are deaf, hard of hearing, or have other hearing conditions can perform successfully on the job and, under the ADA, should not be denied opportunities because of stereotypical assumptions about those conditions. Some employers assume incorrectly that workers with hearing conditions 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 conditions can be effective and safe workers.

My thoughts: stereotypes of hearing loss are a big issue for those of us in the hearing loss community.

  1. When does someone with a hearing condition have a disability within the meaning of the ADA?      

According to the ADA, the definition of “disability” is interpreted broadly in favor of expansive coverage.[7] Under the ADA, individuals with an impairment of hearing will meet the first prong of the ADA’s definition of disability (“actual disability”) if they can show that they are substantially limited in hearing or another major life activity (e.g., the major bodily function of special sense organs).[8] A determination of disability must ignore the positive effects of any mitigating measure that is used.[9]  For example, if someone uses a hearing aid or has a cochlear implant, the benefits of such a device would not be considered when determining if the impairment is substantially limiting.[10] People who are deaf should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of hearing.[11]

My thoughts: small d is used again. Regardless if you are deaf or Deaf, you are going to have an ADA protected disability because you have a physical impairment that substantially limits the major life activity of hearing.

Individuals with a history of an impairment will be covered under the second prong of the ADA definition of disability if they have a record of an impairment that substantially limited a major life activity in the past.[12] An applicant or employee may have a “record of” disability, for example, when the individual’s hearing has been corrected surgically. Finally, an individual is covered under the third (“regarded as”) prong of the ADA definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a hearing condition or because the employer believes the individual has an impairment of hearing, other than an impairment that is not both transitory and minor.

Obtaining, Using, and Disclosing Medical Information

The ADA limits an employer’s ability to ask applicants or employees questions related to disabilities (including hearing disabilities) and to conduct medical examinations. Different rules apply for these inquiries and exams at three distinct stages: pre-offer, post-offer, and during employment.

Job Applicants

Before an Offer of Employment Is Made

  1. May an employer ask whether a job applicant has or had a hearing condition, or treatment related to a hearing condition, prior to making a job offer? 

No. An employer may not ask questions about an applicant’s medical condition[13] or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot ask an applicant such questions as:

  • whether the applicant has ever had any medical procedures related to hearing (for example, whether the applicant has a cochlear implant);
  • whether the applicant uses a hearing aid; or
  • whether the applicant has any condition that affects the applicant’s hearing.

Of course, an employer may ask questions pertaining to the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation, such as:

  • whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment;
  • whether the applicant has good communication skills; or
  • whether the applicant can meet legally mandated safety standards required to perform a job. (My thoughts: you most certainly can ask whether the applicant can meet legally mandated safety standards required to perform a job but those safety standards need to concern the job’s essential functions. Also, the term “legally mandated,” is a critical term because it refers to regulatory requirements and not just something that an employer comes up with). See Justice Thomas’s opinion in Albertson, Inc. v. Kirkingburg, here.
  1. Does the ADA require an applicant to disclose a current or past disability before accepting a job offer?

No. The ADA does not require applicants to disclose that they have or had a hearing disability or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter). Some individuals with a hearing condition, however, choose to disclose or discuss their condition to dispel myths about it or to ensure that employers do not assume that the condition means the person is unable to do the job.

Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job (for example, specialized equipment, removal of a marginal function, or another type of job restructuring). A person with a hearing condition, however, may request an accommodation after becoming an employee even if they did not do so when applying for the job or after receiving the job offer.

My thoughts: after what goes on in a person with a disability’s mind in deciding whether to disclose a disability and seek accommodation, see this Federal Bar Association blog entry.

  1. May an employer ask questions about an obvious hearing condition, or ask follow-up questions if an applicant discloses a non-obvious hearing condition?

No. An employer generally may not ask an applicant about obvious impairments. Nor may an employer ask an applicant who has voluntarily disclosed a hearing condition any questions about its nature or severity, when it began, or how the individual manages the condition. However, if an applicant has an obvious impairment or has voluntarily disclosed the existence of an impairment and the employer reasonably believes that the applicant will require an accommodation to complete the application process, or to perform the job because of the condition, the employer may ask whether the applicant will need an accommodation and what type. The employer must keep any information an applicant discloses about a medical condition confidential. (See “Keeping Medical Information Confidential,” below.)

 

My thoughts: This is very dangerous ground. If a person reveals voluntarily a disability during the course of the interview, asking whether the applicant will need an accommodation and what type can be done but needs to be done very carefully. The last thing you want to do as an employer is turn the interview into a question about whether the disability is being considered rather than the person’s abilities, i.e. whether the person can do the job with or without reasonable accommodations.

Example 1: Julie has a severe hearing condition in her right ear and is applying to the telephone sales department of a clothing company. Julie tells the employer of her hearing condition during the interview. The employer’s sales associates currently wear headsets with earpieces for the right ear. The employer may ask Julie during her interview if she would need a left-sided headset as an accommodation.

My thoughts: See my thoughts immediately above.

After an Offer of Employment Is Made

After making a job offer, an employer may ask questions about the applicant’s health (including questions about the applicant’s disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination). After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information. For example, if an employer asks all applicants post-offer about their general physical and mental health, it can ask individuals who disclose a particular illness, disease, or impairment for medical information or require them to have a medical examination related to the condition disclosed.

  1. What may an employer do when it learns that an applicant has or had a hearing condition after the applicant has been offered a job but before starting work?

When an applicant discloses, after receiving a conditional job offer (italics in original), that the applicant has or had a hearing condition, an employer may ask the applicant additional questions, such as how long the individual has had the hearing condition; what, if any, hearing the applicant has; what specific hearing limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job. The employer also may send the applicant for a follow-up hearing or medical examination or ask the individual to submit medical documentation answering questions specifically designed to assess the applicant’s ability to perform the job’s functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage, when an employer may only ask an applicant who voluntarily discloses a disability or whose disability is obvious whether the individual needs an accommodation either in the application process or to perform the job.

An employer may not withdraw an offer from an applicant with a hearing disability if the individual is able to perform the essential functions of a job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation. (Below, “Accommodating Applicants and Employees” addresses reasonable accommodations (Questions 9 – 15) and “Concerns about Safety” addresses “direct threat” (Questions 16 and 17).)

Example 2: Lydia applies for a position as an aircraft mechanic. After receiving a job offer, she is given a physical examination. The examination reveals that she has a slight hearing loss in her left ear. Although Lydia worked as an aircraft mechanic in a noisy environment with the same level of hearing while she was a member of the military, the employer is concerned that Lydia will pose a risk to herself or others because she may not be able to hear sounds that might alert her to dangers in the work area, such as the presence of moving aircraft or other moving vehicles. The employer may not withdraw the job offer simply because it believes Lydia cannot work safely in a high-noise environment. The employer could only do so if it determined that Lydia’s hearing loss would result in a direct threat (that is, a significant risk of substantial harm to Lydia or to others in the workplace that cannot be eliminated or reduced through reasonable accommodation). The employer may seek additional information about Lydia’s hearing, including how her hearing loss affected her past work experience, to make this determination.

Employees

The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, actual performance is the best measure of ability to do the job.

  1. When may an employer ask an employee if a hearing condition, or some other medical condition, may be causing the employee’s performance problems?

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as difficulties hearing, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.[14]

Example 3: Rupa wears a hearing aid to improve her bilateral, moderate hearing condition. She was recently promoted from an administrative position to sales associate for a cable company. The new position requires significantly more time on the phone interacting with customers. Although Rupa has received excellent reviews in the past, her latest review was unsatisfactory, citing many mistakes in the customer orders she records over the phone. The employer may lawfully ask Rupa if she has any difficulty hearing customers and, if so, whether she would benefit from an accommodation. Possible accommodations could be a captioned telephone that would allow Rupa to communicate verbally while receiving a real-time text relay of the conversation or providing technology that allows Rupa to stream a telephone conversation to her hearing aid.

My thoughts: I would not approach it this way. I would sit the employee down and say something along the lines of, “your performance in this position is not measuring up to what you have done in the past, is there something we can do to help make this better?” Doing it this way, invites the person with a disability to disclose and also allows the employer wiggle room to say that no disclosure was ever made if the person does not take the invitation to disclose. After all, an employer does not have to accommodate a disability it is not aware of. Doing it this way, also lessens the chances of a regarded as claim. Remember, it is up to the person with a disability to disclose that disability. All this said, while I recognize that many disabilities have stigmas associated with them, early disclosure invariably works better for the person with the disability. Finally, the guidance doesn’t define what is a, “moderate hearing condition.”

 

Example 4: An employee with a hearing disability has received below average evaluations for six months, starting when she was not selected for a vacant supervisory position. Moreover, the kinds of performance problems the employee is having—a significant increase in the number of late arrivals and typographical errors in written reports the employee routinely produces—cannot reasonably be attributed to a problem with the employee’s hearing. The employer may not ask for medical information about the employee’s hearing, but instead should counsel the employee about the performance problems or otherwise proceed as appropriate in accordance with its policies applicable to employee performance.

My thoughts: the reasonable accommodation process is all about accommodating a disability so that the person can get to the same starting line as a person without a disability. So, the performance and the disability need to be related. Finally, disability doesn’t trump performance issues.

  1. Are there any other instances when an employer may ask an employee about the employee’s hearing?

Yes. An employer also may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it.

My thoughts: safely performing the essential functions of the job is not the issue as the EEOC covers later in the document. The issue is direct threat, which we have discussed many times in our blog, such as here, and is a high bar to meet.

In addition, an employer may ask an employee about the employee’s hearing to the extent the information is necessary:

  • to support the employee’s request for a reasonable accommodation needed because of a hearing disability;
  • to enable the employee to participate in a voluntary wellness program;[15] or
  • to verify the employee’s use of sick leave related to a hearing condition if the employer requires all employees to submit a doctor’s note to justify their use of sick leave.[16]

Example 5: An employer maintains a leave policy requiring all employees who use sick leave for a medical appointment to submit a doctor’s note upon returning to work. Mark uses sick leave to attend an audiologist appointment to adjust his hearing aids. In accordance with its policy, the employer can require Mark to submit a doctor’s note for his absence; however, it may not require the note to include any additional information (such as the degree of Mark’s hearing loss, the strength of his hearing aids, or the results of the adjustment) if it is not needed to verify that Mark used his sick leave properly.

Keeping Medical Information Confidential

With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose that an employee has a hearing condition:

  • to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions;
  • to first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work;
  • to individuals investigating compliance with the ADA and similar state and local laws; and
  • where needed for workers’ compensation or insurance purposes (for example, to process a claim).
  1. May an employer tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as working at home or working a modified schedule) that the co-worker is receiving a reasonable accommodation?

No. Telling coworkers that an employee is receiving an ADA reasonable accommodation amounts to a disclosure that the employee has a disability.[17] Rather than disclosing that the employee is receiving a reasonable accommodation, the employer may find it helpful to point out that many employee issues are personal and focus on the importance of maintaining the privacy of all employees.[18]

Employers may also be able to avoid many of these kinds of questions by training all employees on the requirements of equal employment laws, including the ADA, and by providing information about reasonable accommodation to all of their employees. Education on reasonable accommodation can be done in a number of ways, such as through written reasonable accommodation procedures, employee handbooks, staff meetings, and periodic online or in-person training. This kind of proactive approach may lead to fewer questions from employees who misperceive co-worker accommodations as “special treatment.”

Example 6: A large store does not provide its sales employees with smartphones. However, the employer does provide a deaf employee with one, as a reasonable accommodation, so that she can receive text messages instead of the numerous communications made over the public address system that she cannot hear, such as requests for sales representatives to report to different parts of the store to assist customers. If other employees ask why only she has a smartphone, the employer may not divulge any information about the impairment, including the fact that the smartphone is a reasonable accommodation.

Accommodating Applicants and Employees

The ADA requires employers to provide adjustments or modifications—called reasonable accommodations—to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability. Not all applicants or employees with a hearing condition will need an accommodation or require the same accommodations.

My thoughts: undue hardship can either be financial, which is incredibly difficult to show, or logistical (think title II and title III concept of fundamental alteration). The very last sentence of this paragraph is incredibly important as it is most certainly the case that not everyone with a hearing condition will need an accommodation or require the same accommodations. I see this mistake made all the time when it comes to hotels accommodating Deaf, deaf, and hard of hearing individuals.

  1. What type of reasonable accommodations may applicants or employees with hearing disabilities need?

Some applicants or employees may need one or more of the following accommodations:

A sign language interpreter.

Example 7:  Based on Shawn’s online application and score on an initial assessment questionnaire, a manager contacts Shawn to schedule an in-person interview. Shawn requests that the employer provide an American Sign Language (ASL) interpreter for the interview. Absent undue hardship, the employer’s ADA obligation is to provide an ASL interpreter (in person or through a video remote interpreting service) for Shawn’s interview as a reasonable accommodation in the application process. (For more information about “reasonable accommodations” for applicants, see Question 14, below.)

 

Example 8: Simon has a hearing disability and works as a project manager for a regional telephone company. Simon is usually able to use his lip-reading ability to communicate individually with his co-workers. However, Simon occasionally requests a sign language interpreter for large-group conferences and meetings, because it is not possible for him to use lip-reading when people who are not in his line of sight are speaking. Simon’s employer would have to provide the sign language interpreter (in person or through a video remote interpreting service) as a reasonable accommodation, absent undue hardship. (For more information about “undue hardship,” see Question 12, below.)

My thoughts: example 8 unfortunately doesn’t make a lot of sense. The example talks about a person who needs an ASL interpreter for large group conferences but yet also relies on lipreading. It is possible that such a person exists but it would not happen frequently. A user of ASL who grows up on ASL where ASL is his or her or they first language is unlikely to be great at lipreading since ASL and English are not at all the same in their structure. It is also a stereotype that Deaf and deaf individuals are excellent lip readers. It is much more likely that a deaf or hard of hearing individual would lipread effectively than it is that a Deaf individual would lipread effectively. Finally, even the best lip reader, which I am one of as is my daughter, will only get 50% of what is said on the lips.

Assistive technology, including:

  • Access to a video relay service or video remote interpreting service using equipment such as a videophone, computer, laptop, tablet, or smartphone.
  • A hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants.
  • Appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers).
  • Enabling the streaming of sound directly from a device to hearing aids or cochlear implants.
  • Utilizing accessibility features of mainstream technology (for example, using the captioning feature on virtual meeting platforms).
  • A voice carry-over telephone, captioned telephone, text telephone, or TTY.[19]
  • Equipment used for hearing protection to block noise or to protect hearing function, including equipment that can be used with hearing aids.
  • Assistive software or applications (for example, for automated captioning, voice recognition, videoconferencing, or sound detection).

Example 9: Allen, who has a hearing disability, works as an information technology (IT) specialist with a small, internet-advertising firm. The IT specialist position requires frequent one-on-one meetings with the firm’s president. Because it will not cause an undue hardship, the firm accommodates Allen by acquiring voice recognition or automated captioning software for him to use in his meetings like concepts with the president. The software is programmed to transcribe spoken words into written electronic text.

My thoughts: I am not sure I understand the reference to voice recognition software, which I use all the time, but it doesn’t have anything to do with my hearing loss. With respect to automatic captioning software (which goes by the term ASR-automatic speech recognition), that can be very helpful. Keep in mind, that should technical terms or accents be involved, ASR will not be all that effective. In that situation, you may need to go with CART services.

  • Assistive listening devices (ALDs).

Example 10: An employer has an annual all-employee meeting for more than 200 employees. Thelma, who has a hearing disability, requests the use of an ALD in the form of a personal FM system. Speakers would wear small microphones that would transmit amplified sounds directly to a receiver in Thelma’s ear. The employer determines that an ALD is a reasonable accommodation that will allow Thelma to participate in the meeting without causing an undue hardship.

My thoughts: depending upon the hearing devices used, assistive listening devices are going to vary considerably in terms of how successful they will be for a particular individual with a hearing loss.

  • 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.

Example 11: Kendall works as an associate for an international consulting firm. Kendall has a hearing disability for which he uses a hearing aid and lip reading. His company sometimes conducts video-conferencing meetings with clients in other countries. During these meetings, Kendall finds it difficult to participate because the video feedback is not continuous. Kendall requests the use of remote CART services as an accommodation during international client meetings. The requested accommodation would translate the client’s spoken word on Kendall’s notebook computer monitor at real-time speed. This accommodation would allow Kendall to participate fully in the meetings and should be provided, absent undue hardship.

My thoughts: see my above comments about automatic speech recognition and CART.

Appropriate written memos and notes (especially used for brief, simple, or routine communications).

Note-taking assistance for those using CART services or sign language interpretation (to allow individuals using CART services or sign language interpretation to remain focused on translations).

Work area adjustments (for example, a desk away from a noisy area or near an emergency alarm with strobe lighting).

Example 12: Ann works as an accountant in a large firm located in a high-rise building. Ann has a large window in her office that faces the street-side of the building. She wears a hearing aid to mitigate her severe hearing condition. Throughout the workday many exterior noises (for example, police sirens, car horns, and street musicians) are amplified by Ann’s hearing aid and interfere with her ability to hear people speaking in her office. Ann requests, and her employer agrees, that moving her to a vacant interior office is a reasonable accommodation without causing an undue hardship.

My thoughts: digital hearing aids today are programmable. It is certainly possible that for many hearing aid users that a program could be developed by his or her or they audiologist so that background noise can be phased out.

Time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable.[20]

Example 13: Beth is deaf and requests leave as a reasonable accommodation to train a new hearing dog. Hearing dogs assist deaf and hard of hearing individuals by providing alerts to a variety of household and workplace sounds such as a telephone ring, door knock or doorbell, alarm clock, buzzer, name call, speaker announcement, and smoke or fire alarm. A hearing dog is trained to make physical contact and direct a person to the source of the sound. Under Beth’s employer’s leave policy, Beth does not have enough annual or sick leave to cover the requested absence. The employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship.

My thoughts: small d used here when both deaf and Deaf should have been used. As everyone knows, I have a hearing dog. Keep in mind, it is not unusual for hearing dogs to be home-based and not used outside the residence.

Altering an employee’s marginal (that is, non-essential) job functions.

Example 14: Manny, a librarian, is primarily responsible for cataloguing books, writing book summaries, and scheduling book tours. Recently, Manny has had to fill in as a desk librarian since the regular librarian is on vacation. Manny has a hearing disability and uses a hearing aid. Manny finds it difficult to hear patrons if there is any background noise. He asks to switch his front desk duties with another librarian who processes book orders transmitted over the phone or internet. Since working at the front desk is a minor function of Manny’s job, the employer should accommodate the change in job duties, absent undue hardship.

My thoughts: no two hearing losses are dealt with in the same way. The ADA requires an individualized analysis and that is especially important when dealing with hearing loss.

Reassignment to a vacant position.

Example 15: Sonny, a stocking clerk on the floor of a large grocery store, develops Ménière’s disease, which produces a loud roaring noise in his ears for long periods of time. It is difficult for him to hear customers and co-workers on the floor because of music and frequent announcements played over the store’s public address system and background noise in the store, particularly during busy periods. The store manager tried several unsuccessful accommodations. Upon request, the employer should reassign Sonny to a vacant position as a stocking clerk in the warehouse at the same location, absent undue hardship. The employee is qualified for the reassignment position and the warehouse is a quieter environment with fewer background sounds.

My thoughts: the jurisprudence involving mandatory reassignment, which we have discussed numerous times in our blog, such as here, is all over the place. The jurisprudence is consistent that reassignment is an option of last resort. After that, there can be considerable differences (compare the Seventh Circuit with the 11th circuit).

Other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

Example 16: Maria is hired as a chemist for a pharmaceutical company. She communicates primarily through sign language and lip reading due to a hearing disability. Shortly after she is hired, she is required to attend a two-hour orientation meeting. The meeting includes a brief lecture session followed by a series of video vignettes to illustrate key concepts. As an accommodation, Maria requests a seat near the trainer, closed captioning during the video segments, and adequate lighting to allow her to read lips throughout the meeting. There is no undue hardship and the employer grants these reasonable accommodations to allow Maria to participate fully during the orientation session.

Although these are some examples of the types of accommodations commonly requested by employees with hearing conditions, other employees may need different changes or adjustments.[21]  Employers should ask the particular employee requesting an accommodation what is needed that will help the employee do the job. There also are extensive public and private resources to help employers identify reasonable accommodations. For example, the Job Accommodation Network (JAN) is a free, confidential service that provides information about many types of accommodations for applicants and employees with disabilities based on the needs of a given individual and workplace.

My thoughts: as I mentioned above, it would be unusual for an individual to communicate primarily through sign language and lip reading, though it could happen. Also, don’t forget about the interactive process.

 

  1. How does an applicant or employee request a reasonable accommodation?

There are no “magic words” that a person has to use when requesting a reasonable accommodation. A person simply has to tell the employer that the individual needs an adjustment or change at work because of an impairment.

My thoughts: this is not the standard I would use. I agree that no magic words are required. However, the interactive process obligation is triggered the minute an employer knows that a disability exists that may need accommodations. Such notification can be communicated to an employer in a myriad of different ways. Be very cautious about taking the statement above that “a person simply have to tell the employer that the individual needs an adjustment or change at work because of an impairment,” literally or you will run yourself into magic words litigation. See also this blog entry.

A request for reasonable accommodation also can come from a family member, friend, health professional, or other representative on behalf of a person with a disability. If an employer requires more information about the disability and why an accommodation is needed, it should engage in an “interactive process”—a dialogue with the applicant or employee—to obtain information that will help the employer in handling the request.

Applicants and employees may find it helpful to discuss any necessary accommodations with the employer prior to starting a new position or assuming new job duties, even if an accommodation was provided during the job application process or in a previous position. Similarly, employers may, as a best practice, inform all new hires post-offer that they may request any needed accommodation in advance of their start date or once on the job.

My thoughts: it is always best for the employer to have the person with a disability lead when it comes to seeking accommodations.

Example 17: Liona has a hearing disability and is employed as an electrician. As a team leader, Liona is responsible for receiving her team’s list of daily work sites and any accompanying special instructions, traveling to the sites with her team, and directing the day’s work at each site. Liona receives the list of assignments and accompanying special instructions from the company owner during daily morning meetings attended by all of the team leaders. The special instructions are given orally. One morning, at the conclusion of a team leader meeting, Liona passes a note to the owner reminding the owner of her difficulty hearing and requesting that all special instructions for the team’s assignments be written down because she is having difficulty hearing them. Liona has requested a reasonable accommodation.

  1. May an employer request documentation when an applicant or employee requests a reasonable accommodation?

Sometimes. When a person’s hearing condition is not obvious, the employer may ask the person to provide reasonable documentation about how the condition limits major life activities (that is, whether the person has a disability) and why a reasonable accommodation is needed. An employer, however, is entitled only to documentation sufficient to establish that the individual has a hearing disability and to explain why an accommodation is needed. A request for an individual’s entire medical record, for example, would be inappropriate, as it likely would include information about conditions other than the individual’s hearing.[22]

Example 18: Luíz, who has a hearing disability and communicates primarily through lip reading and speech, works as a programmer for an internet security firm. The firm acquires a new client and promotes Luíz to be the senior programmer responsible for all consultations regarding the internet security system design for the new client. Luíz’s new assignment requires frequent phone conversations and teleconference meetings that do not allow for the use of Luíz’s lip reading skills to aid in his verbal comprehension. As a result, Luíz’s audiologist recommends, and Luíz requests, the use of a voice carry-over phone, which would provide an almost real-time text relay of the client’s speech and also allow the client to hear Luíz. Because Luíz’s impairment is not an obvious disability, his employer may lawfully request medical documentation to verify his disability.

My thoughts: this “obvious,” piece comes up quite a bit. For example, in the service animal area, the DOJ regulations make this a critical question before you can make two inquiries to establish whether the animal is a service animal. In the employment context, obviousness drives the amount of documentation you can request and is not a prerequisite before you can make any request at all.

 

  1. Does an employer have to grant every request for a reasonable accommodation?

No. An employer does not have to provide an accommodation if doing so would be an undue hardship. Undue hardship means that providing the reasonable accommodation will result in significant difficulty or expense. An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property). Nor do employers have to provide employees with personal use items, such as hearing aids or other devices that are used both on and off the job.

My thoughts: personal devices are not a reasonable accommodation obligation of the employer.

If more than one accommodation would be effective, the employee’s preference should be given primary consideration, although the employer is not required to provide the employee’s first choice of reasonable accommodation. If a requested accommodation is too difficult or expensive, an employer may choose to provide an easier or less costly accommodation as long as it is effective in meeting the employee’s needs.

My thoughts: “too difficult or expensive,” is not the standard. The standard is undue hardship, which can be either logistical or financial. With respect to financial, I can literally count on one hand the number of cases that I have read over the years that found a financial undue hardship.

Example 19: An employee with a bilateral hearing disability requests use of communication access real-time translation (CART) for an upcoming training. In place of the CART device, the employer suggests an assistive listening device (ALD) because it is less expensive than CART. Twelve managers and supervisors are scheduled to take the training in a conference room at the employer’s offices. Much of the information will be presented in a lecture format, accompanied by slides with printed information. The size of the room, the number of participants in the training, and the format of the training make it possible for the employee to use a portable assistive listening system effectively. The employer may, therefore, provide an ALD instead of CART under these circumstances.

My thoughts: if there is ever an example why understanding the distinction between Deaf, deaf, and hard of hearing matters, it is this example. The problem is that we have no idea of the severity of this employee’s bilateral hearing disability. The severity of the hearing loss matters a great deal with respect to what accommodation is requested. Depending on the answer to that question, it is entirely possible that an assistive listening device will not work at all for a particular individual in this context. To suggest that it would ignores how hearing loss actually works among individuals.

 

Example 20: A deaf employee requests a sign language interpreter for regular staff meetings. The employer suggests that a co-worker could take notes and share them with the deaf employee or that a summary of the meeting could be prepared. These alternatives are not effective because they do not allow the deaf employee to ask questions and participate in discussions during the meetings as other employees do. Absent undue hardship, the employer must provide a sign language interpreter (in person or through a video remote interpreting service) for the meetings.

My thoughts: small d. Also, the EEOC in this example references the need for communication to be effective. The EEOC does not contain any effective communication rules. As we have discussed many times in the blog, the DOJ does contain effective communication rules for title II entities and title III entities. As we have also discussed, such as here, the effective communication rules are not the same for title II entities and four title III entities. All this said, an employee with a hearing loss is inevitably dealing with effective communication, so as a preventive law matter, the employer may very well want to consider utilizing the effective communication rules of title II for guidance. Taking that approach will likely prevent a lot of successful lawsuits against the company.

  1. May an employer be required to provide more than one accommodation for the same applicant or employee?

Yes. The duty to provide a reasonable accommodation is an ongoing one. Although some applicants or employees with a disability may require only one reasonable accommodation, others may need more than one. An employer must consider each request for a reasonable accommodation and determine whether it would be effective and whether providing it would pose an undue hardship.

Example 21: A deaf employee can communicate effectively with her supervisor by lip-reading and with written notes. The employee wants to attend a three-day training program that will involve extensive communication between participants and the instructor and among participants themselves. The employee requests CART— communication access real-time translation—for the training. The employer may explore whether another form of reasonable accommodation—for example, a sign language interpreter—would be effective. But, the employer must provide the CART service or another effective form of reasonable accommodation, absent undue hardship, since lip-reading and exchanging occasional notes will not enable the employee to participate fully in the training.

My thoughts: small d. It is extraordinarily hard for me to believe that effective communication could ever occur with a Deaf employee through the use of notes and lipreading. See this blog entry for example. It is not unusual at all for a Deaf, culturally deaf individual, to not read beyond a fourth grade reading level It is far more likely that the effective communication in this situation will be done through an ASL interpreter. Finally, videoconferencing platforms have come a long way with respect to accommodating those in the hearing loss community. For example, the automatic speech recognition has gotten quite good, though its accuracy may vary from platform to platform. Also, the platforms are now including the ability of ASL interpreters to have their own window on the call. While the example uses a small d, I still find it extraordinarily hard for me to believe that effective communication for a deaf individual could be done this way. Finally, see my thoughts immediately above with respect to the DOJ effective communication rules and how they can be used as a guideline.

  1. Does an employer have to provide a reasonable accommodation to an applicant with a disability during the application process even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job?

Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless the employer can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.[23]

My thoughts: I completely agree with this. However, there is some awful case law out there that we have discussed in the blog, such as here, that might disagree with this.

Example 22: An employer is impressed with an applicant’s resume and contacts the individual to come in for an interview. The applicant, who is deaf, requests a sign language interpreter for the interview. The employer cancels the interview and refuses to consider this applicant further because it believes it would have to hire a full-time interpreter. The employer has violated the ADA. The employer should have proceeded with the interview, using a sign language interpreter (in person or through a video remote interpreting service), absent undue hardship, and at the interview inquired to what extent the individual would need a sign language interpreter to perform any essential functions requiring communication with other people.

By contrast, if the employer provides a requested sign language interpreter and the applicant fails a test that is a requirement of the application process, and the poor performance is unrelated to the deafness, the employer does not have to provide any further reasonable accommodations for this individual because the individual is no longer qualified to continue with the application process.[24]

My thoughts: small d when capital D is likely intended. We discussed this hypothetical in an actual case in this blog entry where Johns Hopkins University lost big time. Also, be advised that the Deaf community absolutely cannot stand video remote interpreting services.  

  1. 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 accommodations that are necessary to provide individuals with disabilities access to facilities or portions of facilities to which all employees are granted access (for example, employee break rooms and cafeterias), access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.

My thoughts: the reasonable accommodation obligation absolutely extend to the benefits and privileges of employment. See this case for example, which we discussed here.

Example 23: Karin, who is deaf, works as an associate in a large investment firm. Every December, the partner in charge of the team for which Karin works holds a party at his residence for all of the team’s members and a number of the firm’s clients. Upon Karin’s request, her employer provides her a sign language interpreter to allow Karin to fully participate in the social event.

My thoughts: this example obviously concerns an individual who is Deaf and not deaf.

An employer will not be excused from providing an employee with a disability with a necessary accommodation because the employer has contracted with another entity to conduct the event.

Example 24: An employer offers its employees a training course on organization and time management provided by a local company with which the employer has contracted. An employee who is deaf wants to take the course and asks for CART services or a sign language interpreter. The employer claims that the company conducting the training is responsible for providing what the deaf employee needs, but the company responds that the responsibility is the employer’s. Even if the company conducting the training has an obligation, under Title III of the ADA,[25] to provide “auxiliary aids and services,” which could include CART services and sign language interpreters, this fact would not alter the employer’s obligation to provide the employee with a reasonable accommodation for the training.[26]

My thoughts: in other words, what the EEOC is saying here is that the ADA is a nondelegable duty, which we discussed here.

Concerns About Safety

When it comes to safety concerns, an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing conditions. Instead, the employer should evaluate an individual on the individual’s skills, knowledge, experience, and how the hearing condition affects the individual.

  1. When may an employer refuse to hire, terminate, or temporarily restrict the duties of a person who has or had a hearing disability because of safety concerns?

An employer only may exclude an individual with a hearing disability from a job for safety reasons when the individual poses a direct threat. A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.[27] An employer should conduct an individualized “direct threat” assessment of an individual’s present ability to safely perform the essential functions of the job.[28] This determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In making a direct threat assessment, the employer must consider:

(1)   the duration of the risk;

(2)   the nature and severity of the potential harm;

(3)   the likelihood that the potential harm will occur; and

(4)   the imminence of the potential harm.[29]

The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.[30]

My thoughts: as you can see from #16, direct threat and safety are not at all the same things.

Example 25: A school district denies an applicant with a hearing disability a job as a school bus driver for elementary school students, believing that she will not be able to drive safely and will not be able to monitor students, especially in the event of a medical or other emergency. The applicant has a clean driving record and has previously performed jobs transporting elderly patients by van to doctor’s appointments and social events. Based on past experiences with accommodations, the applicant could monitor students effectively—and without compromising her driving—if an additional mirror highlighting the rear of the bus were installed. The mirror, placed above the driver, would allow her to better monitor students whose conversations she may not be able to hear or understand as well as those students located in the front of the bus. Under these circumstances, the school district cannot demonstrate that this applicant would pose a direct threat to the safety of others, and its refusal to hire her would violate the ADA.[31]

 

Example 26: An employee with a hearing disability requests training to operate a forklift at a large hardware store. For safety reasons, the employer requires that forklift operators be able to communicate with a spotter employee while operating the machine. The employee and the employer contact the JAN, which suggests that they explore whether the employee could be accommodated using a visual alert on a smartwatch, a vibrating pager with a light signal, or a smartphone or tablet on a dashboard mount to allow communication with the spotter. If the employer determines that there is a reasonable accommodation that does not pose an undue hardship, based on the facts of the specific work setting and tasks, it must provide the accommodation and allow the employee training on the forklift. If no reasonable accommodation can be provided absent undue hardship, the employer may deny the employee training on a forklift.[32]

My thoughts: JAN is a great resource.

  1. What should an employer do when another federal law prohibits it from hiring individuals with a hearing condition for particular positions?

If a federal law prohibits an employer from hiring a person with a hearing condition for a particular position, the employer is not liable under the ADA. The employer should be certain, however, that compliance with the law actually is required, not voluntary. The employer also should be sure that the law does not contain any exceptions or waivers.

Example 27: Terry has a severe hearing condition that is slightly improved by her cochlear implant. She applies for a position driving large trucks. These positions are subject to hearing requirements and other standards enforced by the Department of Transportation (DOT), and Terry has not obtained an exemption from the DOT from its hearing requirements. The employer may rely on DOT’s hearing requirement in denying Terry employment. However, the employer may not rely on the DOT hearing requirement to exclude Terry from a position driving smaller trucks, which are not subject to DOT’s standards. Instead, the employer would have to establish that Terry would pose a direct threat, within the meaning of the ADA, if it denied her a position driving smaller trucks because of a hearing disability.

My thoughts: see Justice Thomas’s opinion in Kirkingberg v. Albertsons, Inc., here.

Harassment

The ADA prohibits harassment, or offensive conduct, based on disability just as other federal laws prohibit harassment based on race, sex, color, national origin, religion, age, and genetic information. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Example 28: Leonard works as a stocker at a local electronics store. Leonard lost his hearing two years ago as the result of a rare and debilitating illness. Since Leonard’s recovery and return to work, his co-workers have constantly taunted him about his condition and recklessly driven the forklift near him while yelling for him to move. The employees know that Leonard cannot hear their warnings and often laugh at Leonard’s startled reaction when he sees the forklift approaching him. Leonard complains to his supervisor in accordance with his employer’s anti-harassment policy. The employer must promptly investigate and address the harassing behavior.

My thought: absolutely!

  1. What should employers do to prevent and correct harassment?

Employers should make clear that they will not tolerate harassment based on disability or on any other protected basis. This can be done in a number of ways, such as through a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager. Finally, the employer 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 all of the EEO laws, see EEOC’s Harassment webpage.

Retaliation and Interference

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 investigation, proceeding, or litigation related to a charge of employment discrimination. It is also unlawful for an employer to retaliate against someone for requesting a reasonable accommodation, or to interfere with the exercise of ADA rights. Persons who believe that they have been retaliated against or subjected to ADA interference may file a charge as described below.

My thoughts: don’t forget about interference, which we discussed here.

How to File a Charge of Employment Discrimination

Against Private Employers and State/Local Governments

If you believe that your employment-related ADA rights may have been violated, the EEOC can help you decide what to do next. For example, if the employer refuses to consider your request for a reasonable accommodation to complete an application process or perform your job, and if you think you would be able to do the job with a reasonable accommodation, you might consider filing a charge of discrimination with the EEOC. A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws.

If you file a charge of discrimination, the EEOC will conduct an investigation. Mediation, which is an informal and confidential way for people to resolve disputes with the help of a neutral mediator, may also be available. Because you must file an EEOC charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is covered by a state or local employment discrimination law), it is best to begin the process early. It is unlawful for an employer to retaliate against you for contacting the EEOC or filing a charge.

If you would like to begin the process of filing a charge, go to our EEOC Online Public Portal,  contact your local EEOC office (contact information available on the local office page), or contact us by phone at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone).

My thoughts: with respect to state or local governments, you absolutely want to file with the EEOC. Keep in mind, that should the weight of the federal government come in, it will be the DOJ and not the EEOC that will prosecute a case against the state or local governmental entity.

Against the Federal Government

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by contacting the office responsible for the agency’s EEO complaints program. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or though ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late). If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation. When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred. A detailed description of the federal sector EEO process is available on our website.

If you require language assistance (such as a sign language interpreter or assistive technology) to file a complaint, participate in an EEOC investigation, or as part of an EEOC hearing process, you should submit a request to your agency for assistance. It will then be the responsibility of the responding agency to provide needed language assistance.

This information is not new policy; rather, this document applies principles already established in the ADA’s statutory and regulatory provisions as well as previously issued guidance. The contents of this publication do not have the force and effect of law and are not meant to bind the public in any way. This publication is intended only to provide clarity to the public regarding existing requirements under the law. As with any charge of discrimination filed with the EEOC, the Commission will evaluate alleged ADA violations based on the facts and circumstances of the particular matter and applicable legal principles.

My thoughts:The Trump administration started this disclaimer. It is absolutely accurate in light of the case we discussed here, Kisor v. Wilkie.

 

[1] See EEOC Disability-Related Publications and People with Certain Types of Health Conditions/Disabilities.

[2] The ADA uses terminology that has specific legal meanings. Two central ADA terms are “disability” and “impairment.”

On the issue of self-identification, the National Association of the Deaf (NAD) states that:

The deaf and hard of hearing community is diverse.  There are variations in how a person becomes deaf or hard of hearing, level of hearing, age of onset, educational background, communication methods, and cultural identity.  How people “label” or identify themselves is personal and may reflect identification with the deaf and hard of hearing community, the degree to which they can hear, or the relative age of onset.

See National Association of the Deaf (NAD), Community and Culture–Frequently Asked Questions, (last accessed January 17, 2023).

In addition, NAD addresses particular labels that often are favored or disfavored. In this document, EEOC does not use the terms that NAD indicates are most often disfavored, including the term “hearing impaired.” However, to ensure consistency with the ADA definition of disability, which incorporates references to physical “impairment,” this document uses the terms “disability” and “impairment” as necessary as a legal matter.

[3] For example, disability laws in California, Pennsylvania, New Jersey, New York, and a number of other states apply to employers with fewer than 15 employees.

[4] See National Institute on Deafness and Other Communication Disorders, Quick Statistics About Hearing (citing to CDC report) (last accessed January 17, 2023).

[5] See Note 2, above.

[6] Id.

[7] The definition of “disability” is construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA, and the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. 29 C.F.R. § 1630.1(c)(4).

[8] See 29 C.F.R. §1630.2(i)(1)(ii).

[9] 42 U.S.C. § 12102(4)(E).

[10] Id.; 29 C.F.R. § 1630.2(j)(5)(i).

[11] 29 CFR 1630.2(j)(3)(iii).

[12] 29 C.F.R. § 1630.2(k).

[13] Federal contractors are required under 41 C.F.R. § 60-741.42, a regulation issued by the Office of Federal Contract Compliance Programs (OFCCP), to invite applicants to voluntarily self-identify as persons with disabilities for affirmative action purposes. The ADA prohibition on asking applicants about medical conditions at the pre-offer stage does not prevent federal contractors from complying with the OFCCP’s regulation. See Letter from Peggy R. Mastroianni, EEOC Legal Counsel, to Patricia A. Shiu, Director of OFCCP (Aug. 8, 2013)(last accessed January 18, 2023).

[14] An employer also may ask an employee about the employee’s hearing or send the employee for a medical examination when it reasonably believes the employee may pose a direct threat because of an impairment. See “Concerns About Safety.”

[15] The ADA allows employers to conduct voluntary medical examinations and activities, including obtaining voluntary medical histories, which are part of an employee wellness program (such as a smoking cessation program), as long as any medical records (including, for example, the results of any diagnostic tests) acquired as part of the program are kept confidential. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA at Question 22.

[16] An employer also may ask an employee for periodic updates on the employee’s condition if the employee has taken leave and has not provided an exact or fairly specific date of return or has requested leave in addition to that already granted. Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health without violating the ADA.

[17] An employer’s attempt to indirectly advise an employee’s colleagues that the employee is receiving a reasonable accommodation (by, for example, telling an employee’s colleagues that the ADA requires the employer to make changes for that employee) may also amount to a disclosure that the employee has a disability.

[18] See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA at Question 42.

[19] A text telephone or teletypewriter (TTY) allows a telephone user to send typed messages to another caller and to receive typewritten messages from the caller either directly (if the caller is also using a TTY) or through a telephone relay service (TRS) operator. A voice carry-over telephone allows someone with a hearing condition to communicate orally over the telephone and to receive text communications from the other caller that are transcribed by a TRS operator. A captioned telephone allows users with hearing conditions to receive communications over the telephone orally while receiving an almost simultaneous text translation.

[20] For more information regarding an employer’s responsibility to provide leave for covered individuals, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Questions 17 – 21 (2002); Employer-Provided Leave and the Americans with Disabilities Act (2016).

[21] For information on specific accommodation ideas for different types of limitations, see the Job Accommodation Network’s Searchable Online Accommodation Resource (SOAR)(last accessed January 17, 2023).  JAN can also be reached at 800-526-7234 (Voice) or 877-781-9403 (TTY).

[22] Requests for documentation to support a request for accommodation may violate Title II of the Genetic Information Nondiscrimination Act (GINA) where they are likely to result in the acquisition of genetic information, including family medical history. 29 C.F.R. §1635.8(a). For this reason, employers may want to include a warning in the request for documentation that the employee or the employee’s doctor should not provide genetic information. Id. at 1635.8(b)(1)(i)(B).

[23] Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at Question 13.

[24] Id. at Question 13, Examples A & B.

[25] In an effort to eliminate discrimination against individuals with disabilities, Title III of the ADA requires businesses and non-profit organizations that are public accommodations to comply with basic nondiscrimination and building accessibility requirements, provide reasonable modifications to policies and practices, and supply auxiliary aids (for example, assistive listening devices) to ensure effective communication with persons with disabilities. For more information on the requirements of Title III of the ADA, visit the website for the U.S. Department of Justice, Civil Rights Division, Disability Rights Section (last accessed January 17, 2023).

[26] An employer should include, as part of any contract with an entity that conducts training, provisions that allocate responsibility for providing reasonable accommodations. This can help to avoid conflicts or confusion that could arise and result in an employee being denied a training opportunity. An employer should also remember, however, that it remains responsible for providing a reasonable accommodation that an employee needs to take advantage of a training opportunity, regardless of how that responsibility has been allocated in the contract.

[27] 29 C.F.R. § 1630.2(r).

[28] Id.

[29] Id.

[30] Id.

[31] See Rizzo v. Children’s World Learning Center, 213 F.3d 209 (5th Cir. 2000).

[32] See Job Accommodation Network’s Accommodation and Compliance: Hearing Impairment  (last accessed January 17, 2023), describing a process for determining if a particular accommodation would meet employer and employee needs and providing links to specific accommodation ideas for different types of hearing conditions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hockey, Ice Hockey, Puck, Hockey Stick

Picture of Hockey helmet, puck, and stick (brown and black colors).

 

As readers know, I have long been interested in the intersection of the ADA and sports. Many of my blog entries cover that topic. The very first edition of Understanding the ADA back in 2000 had a whole chapter on it. The subsequent editions of my book always had a chapter on it. As far as the book goes, think of my blog like as updating the book in real time from week to week. The case of the day, M.U. v. Team Illinois Hockey Club, Inc. and the Amateur Hockey Association of Illinois, Inc., here, is one such case. I had the complaint in my pipeline for quite a long time. Yesterday, I decided to try and figure out whatever happened to that case. When I did that I found out that the case had been appealed to Appellate Court of Illinois and that the Appellate Court of Illinois, Second District issued a decision on August 19, 2022. The decision bears discussing because it covers a lot of topics that we have covered before. By way of explanation, the ¶ is what appears in every Illinois opinion. Several years ago, Illinois went to an Internet-based citation system and the ¶ is how you cite to a particular case. As usual, the case is divided into categories and they are: facts; Team Illinois is not a place of public accommodation; Team Illinois is not a place of public accommodation but it doesn’t matter; plaintiff properly pled that the Amateur Hockey Association of Illinois aided and abetted discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff is a high school student and long-time player of hockey in organized hockey leagues and teams. She is also a person with a disability, in that she suffers from anxiety and depression. She has received professional medical and mental health support, and her medical providers approved and encouraged her hockey playing as a means to support her mental health. Over the years, plaintiff’s mental health has benefited from the physical activity, structure, and social connections that come with playing on a hockey team.

 

¶ 4 Prior to the 2019-20 hockey season, plaintiff participated in public tryouts for, and later joined, the “Girls 14U [hockey] team” operated by Team Illinois. Team Illinois is an Illinois nonprofit corporation that operates youth hockey teams as part of AHAI, which is the governing body in Illinois for USA Hockey. Team Illinois offers a variety of activities and services, including club hockey teams, practices, clinics, workouts, team meals, travel opportunities, sessions to review game tape, coaching, and opportunities to play in hockey games and tournaments before family, friends, hockey scouts, and the general public. Relatedly, AHAI is an Illinois nonprofit corporation and affiliate of USA Hockey. It regulates and controls youth hockey leagues and teams throughout the state, including Team Illinois.

 

¶ 5 Team Illinois “leases and operates the Seven Bridges Ice Arena” (Seven Bridges) in Woodridge, in addition to other related facilities, for its activities and services. Seven Bridges is open to the public and includes “an ice rink with space for spectators, locker rooms, training facilities, concessions, offices for Team Illinois, and other related facilities.” Most of Team Illinois’s activities, such as hockey tryouts, practices, and games, are held at Seven Bridges. – 2 – 2022 IL App (2d) 210568

 

¶ 6 On November 13, 2019, just prior to hockey practice, plaintiff and her mother informed plaintiff’s coach, Larry Pedrie, that plaintiff struggled with mental health and suicidal thoughts. Plaintiff’s mother also informed Pedrie that plaintiff had the support of mental health providers and she expressed that hockey was an important and supportive aspect of plaintiff’s life.

 

¶ 7 The next day, November 14, 2019, Pedrie spoke to Mike Mullally, who is both a member of AHAI’s board of directors and a director of the central district for USA Hockey. Together, they “agreed *** to banish [plaintiff] from Team Illinois until she was able to participate 100% in Team Illinois Activities.” Pedrie then called plaintiff’s parents and informed them that, due to her suicidal thoughts, depression, and anxiety, plaintiff was prohibited from participating in Team Illinois activities and events until she could be “cleared by a doctor to return to 100% of Team Illinois activities.”

 

¶ 8 Team Illinois likewise “prohibited [plaintiff] from [having] any contact with Team Illinois players,” and it sent an e-mail to the other players and their parents directing them to have no contact with plaintiff. The e-mail stated that plaintiff was removed from any involvement and communication with her teammates until she was back to “the positive, happy, smiling kid that we all know she is.” On November 16, 2019, Pedrie reiterated in an e-mail that plaintiff was prohibited from Team Illinois activities until she could “take part 100% in all team activities,” including team strength training sessions and practices, as well as attend all games and all other team functions, such as meals, meetings, and video sessions. Two days later, on November 18, 2019, plaintiff’s parents had a telephone call with Mullally, who “confirmed that he and [Pedrie] had *** decided to exclude [plaintiff] from hockey” and “reaffirmed the 100% participation requirement as AHAI’s position for when [plaintiff] could return to hockey.” – 3 – 2022 IL App (2d) 210568

 

¶ 9 Plaintiff was barred from Team Illinois activities until December 11, 2019—after her parents obtained counsel and threatened litigation. In all, plaintiff was prohibited from Team Illinois activities for just under one month. She completed the 2019-20 hockey season with Team Illinois and thereafter began playing hockey for a different youth hockey team within AHAI’s purview.

 

¶ 10 On April 9, 2020, plaintiff filed a charge of discrimination with the Illinois Department of Human Rights (Department), asserting that defendants subjected her to discriminatory treatment because of her disability. In February 2021, after an investigation, the Department dismissed the charge because it found that the claim lacked substantial evidence.

 

¶ 11 On April 20, 2021, plaintiff timely filed a three-count complaint against defendants, alleging disability discrimination in violation of the Act and seeking damages and injunctive relief. See id. § 7A-102(D)(3) (providing that, if the Department concludes that the charge lacks substantial evidence, the complainant may “seek review of the dismissal order before the [Human Rights] Commission or commence a civil action in the appropriate circuit court”). Counts I and II alleged that Team Illinois violated the Act by denying her the full and equal enjoyment of Team Illinois facilities (including Seven Bridges) and services because of her disability or, in the alternative, that she was denied those things because she was perceived by Team Illinois to have a disability. Count III alleged that AHAI, through Mullally, “aided, abetted and/or conspired” with Team Illinois to violate the Act.

 

 

II

Court’s Reasoning That Team Illinois Is Not a Place of Public Accommodation

 

  1. 775 ILCS 5/5-101 describes what is a place of public accommodation under the Illinois Human Rights Act (the list is identical to what is seen in 42 U.S.C. §12181(7) except that it adds public conveyances on air, water, or land as an additional category).
  2. Neither a youth hockey team nor any type of Sports Association organization is specifically enumerated and what is a place of public accommodation in the Illinois Human Rights Act.
  3. When a statute lists several classes of persons of things but provides that the list is not exhaustive, the class of unarticulated person or things is interpreted as those other such named persons or things.
  4. Places of public accommodation in §5-101(A) relate to physical, tangible places.
  5. Article 5 of the Act prohibits the denial or refusal of the full and equal enjoyment not of public accommodation but rather of a public place of accommodation.
  6. While the term “place,” is not defined, it is assumed that the legislature intended for it to have its ordinary and popularly understood meaning. When one looks at the dictionary, dictionaries repeatedly define place in terms of spatial location. Therefore, a straightforward reading of §5-102(A) reveals that it concerns the facilities, goods, and services offered by a physical place, rather than some entity that is abstract or intangible.
  7. All but one of the categories (public conveyances on air, water, or land), set forth specific examples followed by a general residual or catchall clause. Those examples share a distinctive and unquestionable attribute as they all concern tangible physical places. Even the residual clauses that follow the specific examples are couched in terms of physical location.
  8. In the clauses that use the term “establishment,” dictionaries make clear that establishment is also a physical place.
  9. In a footnote, the court notes that several federal courts have distinguished between places of public accommodation and membership organizations in finding that the membership organizations are not places of public accommodations.
  10. The biggest difference between Team Illinois and the entities listed as places of public accommodation in the Illinois Human Rights Act is that Team Illinois is not itself a physical place. As such, that feature alone is enough to exempt Team Illinois, the organization, from the definition of a place of public accommodation.
  11. In another footnote, the court notes that the various U.S. Courts of Appeals are divided on whether a public accommodation must be a physical place. The First, Second, and Seventh Circuits hold that a public accommodation is not limited to physical structures. On the other hand, The Third, Fifth, Sixth, and Ninth Circuits hold that a public accommodation must be or have a connection to a physical place.

 

II

Team Illinois Is Not a Place of Public Accommodation but it Doesn’t Matter

 

  1. Federal authority is clear that athletic organizations are subject to civil rights laws if the exercise sufficient control over a place of public accommodation by, for example, leasing or operating the venue where its public sporting events are held.
  2. The controlling case is PGA Tour v. Martin, here , where the Supreme Court held that the PGA Tour was subject to title III of the ADA because the events occurred at golf courses, which are specifically enumerated as a place of public accommodation under the ADA. Additionally, the PGA Tour leased and operated the golf courses for qualifying rounds and tours. The court said that as a leasing entity and operator of golf courses the PGA Tour could not discriminate against any individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of those courses.
  3. In Martin, the Supreme Court explained that the privileges offered by the PGA Tour at golf courses were: 1) the privilege to observe the competition; and 2) the privilege to compete in it. The Supreme Court stated that although the latter privilege is more difficult and more expensive to obtain than the former, it is nonetheless a privilege that the PGA Tour makes available to members of the general public. Therefore, because the golfer qualified to play in the tour, the ADA prohibited the PGA Tour from denying him equal access because of his disability. In other words, the ADA prohibited the PGA Tour from discriminating against not only the spectators at its advanced but also the competitors themselves.
  4. Martin stated in broad terms that even though the PGA Tour was a private organization and not itself a place of public accommodation, it was nevertheless subject to the ADA as a leasing entity and operator of a place of public accommodation-the golf course.
  5. Martin is directly on point to this case: 1) Team Illinois is a membership organization holding competitive sporting events at a place of public accommodation; 2) Seven Bridges, which is where the events are held, is a place of public accommodation under the Illinois Human Rights Act because it is of the type of activity like a golf course, which is specifically listed as a place of public accommodation; and 3) while Team Illinois is not a place of public accommodation, it is subject to the Illinois Human Rights Act because it barred plaintiff on the basis of her disability from participating in Team Illinois events, such as hockey games and tournaments, that were held at a place of public accommodation that Team Illinois leased and operated.
  6. Team Illinois by virtue of its lease and operation of a place of public accommodation offer the general public at least three distinct services: 1) watching Team Illinois competition; 2) open tryout turn membership on the team; and 3) the opportunity to actually play in competitive hockey games as a member of the team if selected. As in Martin, while earning a spot to play in competitive athletics for Team Illinois is distinctly more difficult and expensive than simply watching the team play, it nevertheless is a privilege that Team Illinois makes available to the public at Seven Bridges-a place of public accommodation.
  7. It doesn’t matter that profit is not involved because the Martin decision did not turn on profit aspirations. In fact, profit aspirations were not even mentioned in Martin.
  8. Martin teaches that once a place constitutes a place of public accommodation, the service allegedly denied to the plaintiff need not have been available to the general public. Therefore, the fact that Team Illinois is selective in choosing its members is not important because a facility does not lose its status as a place of public accommodation merely because entry to the field of play during athletic competitions is limited. Here, the plaintiff earned a place on Team Illinois roster and therefore, Team Illinois cannot then deny her on the basis of her disability the privilege of participation at athletic events held at place of the public accommodations, such as Seven Bridges.
  9. Federal courts have relied on Martin to hold that other athletic organizations open to the public and tied to places of public accommodations are subject to the ADA (NCAA and a youth football Association for example).

 

III
Plaintiff’s Claim Alleging That the Amateur Hockey Association of Illinois Aided and Abetted Discrimination Was Properly Pled

 

  1. Plaintiff adequately allege facts to support that the Amateur Hockey Association of Illinois through a board member aided and abetted Team Illinois and violating the Illinois Human Rights Act.
  2. Specific allegations were made that Team Illinois and the board member spoke and agreed to exclude plaintiff from Team Illinois until she was able to fully participate in its activities. That conversation was confirmed in a subsequent phone call that also reaffirmed the 100% participation requirement at the American Hockey Association of Illinois’s position for when plaintiff could return to Hockey. The joint decision is sufficient for a showing that the American Hockey Association of Illinois knowingly and substantially assisted in violating the Illinois Human Rights Act.

 

IV

Thoughts/Takeaways

 

  1. The Illinois Protection and Advocacy organization, Equip For Equality, filed an amicus brief for the plaintiff. This organization does tremendous work on behalf of people with disabilities in Illinois.
  2. I continually am mystified by how plaintiff attorneys in cases where a question exists whether a place of public accommodation must be a physical place ignore the Supreme Court decision in South Dakota v. Wayfair, which we discussed here. As mentioned in that blog entry, the Supreme Court literally has 23 different statements strongly suggesting that a place of public accommodation need not be a physical place.
  3. The Illinois Human Rights Act, similar to Texas, applies to public conveyances on air, water, or land as an additional category. With respect to air, there are serious preemption issues that arise thanks to the Airline Deregulation Act and that can get quite complicated (I have consulted on several such cases like that).
  4. Per Martin, you do not have to be a place of public accommodation to be subject to the laws governing places of public accommodation when it comes to disability discrimination if you are using a place of public accommodation to carry out your activities.
  5. I do look for the Supreme Court to eventually step in to try to figure out whether a place of public accommodation must be a physical place. I’m not optimistic that Congress will step in to clarify that. As far as what the Supreme Court will do, impossible to say. I will be completely befuddled if the plaintiff in such a case did not bring up South Dakota v. Wayfair.
  6. We discussed PGA Tour v. Martin a bit in this blog entry,
  7. There was also a 100% participation requirement of volunteer. We discussed here how 100% return to work policies are no longer kosher. 100% participation or return to work policies are a really bad idea.
  8. It was not accurate for the court to say that all the plates of the public accommodations listed in the Illinois Human Rights Act concern physical places. Like 42 U.S.C. §12181(7), travel is also listed, which many courts have said over the years was not necessarily a physical place even at the time the ADA was enacted. Also, while the categories in both the Illinois human rights act and in 42 U.S.C. §12181(7) are exclusive, specific entities listed are not.
  9. We discussed the applicability of the ADA to a youth football Association here.
  10. In November 2022, the Illinois Supreme Court agreed to hear the case. I wasn’t able to find easily when it will be argued.

Happy new year everyone.

 

I am a bit of an administrative law gearhead and have been practicing in that area for decades. I have been turning over the Ohio Supreme Court decision in Twism Ent’s., L.L.C. v. State Board of Registration for Professional Engineers and Supervisors decided December 29, 2022, which can be found here, in my head for a while as a possible blog entry. The clincher was reading the WSJ editorial applauding the decision in today’s WSJ (I have been reading the WSJ since high school). Basically, for those trying to figure out how the United States Supreme Court might kill Chevron, all you have to do is look to this case. As usual, the blog entry is divided into categories and they are: facts; Chevron in Ohio; agency deference in Ohio moving forward; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Engineering firms that wish to do business in Ohio must receive authorization from the Board. R.C. 4733.16(B). The firm seeking authorization “shall designate one or more full-time partners, managers, members, officers, or directors as being responsible for and in responsible charge of the professional engineering or professional surveying activities and decisions.” R.C. 4733.16(D). The person designated must be a state-registered engineer. Id. Once the statutory requirements are met, the Board has a mandatory duty to register the firm: the Board “shall issue a certificate of authorization to each firm, partnership, association, limited-liability company, or corporation that satisfies the requirements of this chapter.” R.C. 4733.16(E).

 

The Board has adopted an administrative rule that defines “responsible charge” as “being in control of, accountable for and in either direct or indirect supervision of the engineering and/or surveying activities of the business enterprise.” Ohio Adm.Code 4733-39-02(A). The rule defines “full-time” as “working more than thirty hours per week or working substantially all the engineering or surveying hours for a firm, partnership, association, limited liability company or corporation that holds a certificate of authorization.” Ohio Adm.Code 4733-39-02(B).

 

TWISM, a small start-up firm, applied to the Board for a certificate of authorization. TWISM’s application designated James Cooper as its manager. Cooper attested that he is a full-time engineer “in responsible charge for and in charge of the professional engineering * * * activities and decisions of the firm.” SUPREME COURT OF OHIO 4 Cooper represented that he provides engineering services to TWISM on a perproject basis and that he provides all of TWISM’s engineering services. TWISM’s operating agreement lists Cooper as a “manager” “vested with the management” authority “to oversee the day to day operations of the engineering department.” For tax purposes, the firm reports his income to the IRS as an independent contractor on a form 1099, rather than withholding and reporting his income as an employee under a W-2 tax form.

 

The Board denied TWISM’s application. As the basis for its denial, the Board said that TWISM had “failed to designate one or more full-time partners, managers, members, officers, or directors as being responsible for and in charge of professional engineering activities and decisions for the firm.” In the Board’s view, a manager had to be a “W-2” employee rather than a “form-1099” independent contractor.

 

The Board identified two problems with TWISM’s application. First, it said that Cooper did not work “full time” for TWISM. It pointed to Ohio Adm.Code 4733-39-02(B)’s definition of “full-time,” which requires more than 30 hours of work weekly or “working substantially all the engineering or surveying hours for” the firm. The Board, though, never explained why Cooper, who indisputably performed “all the engineering * * * hours” of TWISM, failed to meet this definition.  Second, the Board found that TWISM did not satisfy the requirement that it have a full time “manager,” because of Cooper’s status as an independent January Term, 2022 5 contractor rather than a W-2 employee. The Board said that it was necessary that the holder of the certificate of authorization have control over the professional engineer’s activity and “[t]hat control is ensured by an employer/employee relationship.” Thus, the Board adopted a hardline rule that R.C. 4733.16(D) requires formal W-2 employment; a business may not designate an independent contractor as professional engineer.

 

II

Chevron in Ohio

 

  1. Ohio’s approach to agency deference is hard to categorize. Since Chevron, Ohio courts have gone about it three different ways: 1) mandatory deference whereby the court give conclusive deference to an agency’s interpretation of the statute that it had the duty to enforce so long as the interpretation is reasonable; 2) ambiguity triggers mandatory deference where the courts will conclusively defer to an agency’s reasonable interpretation where the statute is ambiguous; and 3) permissive deference where courts in Ohio may or may not rely on the expertise of a state agency.
  2. The ultimate authority to render definitive interpretations of the law rests exclusively in the judicial branch. That is, only the judiciary may make an interpretation considered authoritative in a judicial proceeding.
  3. The idea a court must defer to an agency determination is difficult to reconcile with separation of powers concepts because it then hands to the executive branch the judicial authority to say what the law is.
  4. Mandatory deference raises questions of judicial independence because how is it possible for the judiciary to fairly decide a case when it turns over to one party the conclusive authority to say what the law means.
  5. No person is allowed to be a judge in their own cause because that interest certainly biases the judgment. So, mandatory deference creates systematically biased judgment in cases where a government agency is a party.
  6. The Ohio Administrative Procedure Act allows those adversely affected by many types of agency adjudications to appeal to the Court of Common Pleas. The court can affirm the order of an agency only if it is supported by reliable, probative, and substantial evidence and is in accordance with the law. Accordance with the law is a de novo review standard, which is not a deferential standard at all.
  7. Ohio has a statute that says that a court when determining the intention of the legislature may consider among other matters the administrative construction of the statute. So, that means the legislature envisioned that a court might defer to an administrative agency only when a statute is ambiguous, and even then, the deference is permissive and not mandatory.

 

III

Agency Deference in Ohio Moving Forward

 

  1. It is never mandatory for a court in Ohio to defer to the judgment of an administrative agency.
  2. Even if deference only occurs when a statute is ambiguous, a court is still assigning to the agency a range of choices about statutory meanings to the agency rendering the interpretive judgment.
  3. It is the province and duty of the judicial department to say what the law is.
  4. A court may consider an administrative agency’s construction of statutory text in exercising its duty to independently interpret the law within certain parameters: 1) an administrative interpretation should never be used to alter the meaning of clear text; 2) the weight, if any, a court assigns to administrative interpretation depends on the persuasive power of the agency’s interpretation and not on the mere fact that it is being offered by an administrative agency. That is, a court might find agency input informative or it might find the agency position unconvincing.
  5. A court cannot outsource the interpretive project to a coordinate branch of government.
  6. The Ohio Supreme Court cites to Skidmore. See also §IV(8) below
  7. In assessing the persuasiveness of an agency interpretation, it is appropriate for courts to keep in mind the respective competencies of the agency and the judiciary. When it comes to interpretation of texts involving common words used in the ordinary sense, there will rarely if ever be a need for court to look to an agency interpretation. On the other hand, in specialized matters involving technical meaning uniquely within the competency of the agency, the agency’s expertise might prove helpful to a court in its interpretive task. Even then, it is still up to the court to independently interpret the law with the weight being given to the agency interpretation depending upon its persuasiveness.
  8. One half of the States adopt a permissive approach to interpreting agency regulations.
  9. Turning to the merits of the case, the Ohio Supreme Court holds that the applicable language in the relevant statute says nothing about the firm’s control (employee v. independent contractor), over the manager.
  10. Three judges joined the reasoning and three judges concurred in the judgment only but did not offer a concurring opinion.

 

IV

Thoughts/Takeaways

 

  1. If you are wondering the approach the Supreme Court may take to getting rid of Chevron, this case is a good place to start with.
  2. I have been involved with administrative law since 1989. I spent a legislative session on the Joint Committee on Administrative Rules for the state of Illinois. That entity is an entity that is part of the state legislature whose purpose is to proofread agency regulations and to ensure that agency regulations do not exceed legislative intent. Ohio also has a Joint Committee on Administrative Rules. If an agency goes too far, legislators on that committee can then vote and say that the regulation goes too far. Whether a court would actually allow that committee to overturn agency regulations is another question. One has to wonder what will be the role of Joint Committee on Administrative Rules in the States that have them in a scheme where Chevron deference no longer exists, such as in Ohio. Will the agency interpretation of a statute be more persuasive if the Joint Committee on Administrative Rules has not voted against the agency interpretation of that statute? What if the agency does not back down from staff warnings that the regulations go too far? What if the committee overrides the recommendation of Joint Committee on Administrative Rules staff that the rules go too far? When I was on the Joint Committee on Administrative Rules in Illinois, it was very rare for that committee to vote that an agency regulation exceeded legislative intent. Even so, no agency wanted to be in the position of having it on record at the legislature thought they went beyond legislative intent and the regulations. Accordingly, agencies would generally back down if Joint Committee on Administrative Rules staff felt the regulations went too far.
  3. The regulation at issue in Ohio did go through the proper rulemaking. Even so, an interpretation of the rule by the agency was involved, which might explain the court’s reference to Skidmore and the shades of Kisor in the decision.
  4. Was it really necessary for the Ohio Supreme Court to attack Chevron so directly when they could have made clear that Kisor was really the issue?
  5. On a policy level, getting rid of Chevron deference will make it harder for everybody to figure out what actually is required because the judicial branch moves so slowly.
  6. We already know that numerous justices on the Supreme Court can’t stand Chevron.
  7. The Ohio Supreme Court seems to be alluding to Kisor v. Wilkie when it talked about when to defer to specific agencies when it has particular expertise.
  8. To my mind, there is a big difference between Chevron deference and Kisor deference because Chevron deference involves properly promulgated administrative rules. Administrative Procedure Acts are basically all the same whereby a rule is proposed, comments are received, and then the regulations are finalized. Agency interpretation of regulations can come out whenever the agency wants to and do not go through all the checks and balances involved in formal rulemaking. So, an argument exists that the two situations (agency interpretation of their own regulations and the final regulations themselves), should not be treated the same way with respect to deference.
  9. I would expect Joint Committee on Administrative Rules in the various states to become even more important under a Chevron dead regime. See also this blog entry.
  10. We discussed Kisor v. Wilkie, here.
  11. Look for legislative bodies to make it much more explicit that executive agencies have the power to formulate final regulations.

To start the new year, we are going to have a short discussion of a couple of cases dealing with attorney fees in the serial plaintiff context. Then, we are going to explore the Pregnant Workers Fairness Act that was just signed by Pres. Biden as part of the massive bill to keep the government open. As usual the blog entry is divided into categories and they are: Shayler v. 1310 PCH, LLC; Garcia v. Guadalupe Alcocer; Pregnant Workers Fairness Act highlights; and Pregnant Workers Fairness Act thoughts/takeaways. It is hard to believe that the reader won’t want to read the whole blog entry, but of course the reader is free to focus on any or all of the sections.

I
Shayler v. 1310 PCH, LLC

In Shayler v. 1310 PCH, LLC, here, the Ninth Circuit in a published decision decided on October 24, 2022, winds up approving a 65% downward multiplier to the total amount of fees and a $300 per hour blended billing rate for plaintiff’s counsel because the nature of the work was turnkey. Also, the court specifically referenced abusive ADA litigation and that the serial plaintiff model allows for a quick recovery of attorney’s fees with relatively minimal difficulty. The cases also include boilerplate filing then rarely involve complex legal issues or any difficult factual discovery. Finally, the court said that $300 per hour was a sufficient figure for a case involving a run-of-the-mill repeat player ADA case lacking in legal, factual, or procedural complexity.

Comment: I know what it takes to keep my doors open even as a solo practitioner practicing virtually. $300 per hour is not much at all. I doubt the firm can make much of a profit at that figure, if any. It is a published decision, so I definitely expect defense firms to utilize this case widely in attempting to keep plaintiff’s attorney fees to the bare minimum.

II
Garcia v. Guadalupe Alcocer

In Garcia v. Guadalupe Alcocer, here, the Ninth Circuit in an unpublished decision decided on December 8, 2022, holds an award for attorney fees for a defendant involved in litigation with a serial plaintiff. The court said that there was no way the plaintiff attorney could have believed that the plaintiff had a credible intent to return, which is necessary to get injunctive relief, and therefore the defendant was entitled to its fees.

Comment: There can be real advantages for a defense attorney to notice up a deposition immediately to establish standing, an idea that my colleague Richard Hunt frequently brings up in his access defense blog. Also, on the plaintiff side, plaintiff attorneys do need to be aware of the requirement to establish an intent to return when they are prosecuting title III cases. Finally, keep in mind that how intent to return is viewed can vary considerably from jurisdiction to jurisdiction.

III
Pregnant Workers Fairness Act Highlights

I previously blogged on the Pregnant Workers Fairness Act here, but it pays to go over it as it exists when it was signed into law.

The Pregnant Workers Fairness Act can be found at the very end of the massive bill that Pres. Biden signed to keep the government open. That bill is here. The highlights of the bill follow:

  1. Applies to employers of 15 or more.
  2. Applies to Congress.
  3. Applies to State elected officials and their staff.
  4. Applies to States.
  5. Applies to federal employees.
  6. Applies to religious entities with respect to their employees.
  7. A key term is “known limitation,” which means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability under the ADA.
  8. Another key term is “qualified employee,” which means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.
  9. A person is qualified under the Act if all of the following are true: 1) any inability to perform an essential function is for a temporary period; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated.
  10. “Reasonable accommodation,” and “undue hardship,” have the same meaning as under title I of the ADA and its final implementing regulations, including the interactive process regulations.
  11. Unlawful employment practices include:

(1) not make reasonable accommodations to the known
limitations related to the pregnancy, childbirth, or related
medical conditions of a qualified employee, unless such covered
entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered
entity;
(2) require a qualified employee affected by pregnancy,
childbirth, or related medical conditions to accept an
accommodation other than any reasonable accommodation arrived
at through the interactive process referred to in section
102(7);
(3) deny employment opportunities to a qualified employee
if such denial is based on the need of the covered entity to
make reasonable accommodations to the known limitations related
to the pregnancy, childbirth, or related medical conditions of
the qualified employee;
(4) require a qualified employee to take leave, whether
paid or unpaid, if another reasonable accommodation can be
provided to the known limitations related to the pregnancy,
childbirth, or related medical conditions of the qualified
employee; or
(5) take adverse action in terms, conditions, or privileges
of employment against a qualified employee on account of the
employee requesting or using a reasonable accommodation to the
known limitations related to the pregnancy, childbirth, or
related medical conditions of the employee.

  1. Exhaustion of administrative remedies is required.
  2. This is a fee shifting statute.
  3. Damages are tied into title VII the of the civil rights act.
  4. Prohibits retaliation.
  5. Prohibits coercion, which term includes coercing, intimidating, threatening, and interfering.
  6. An employer’s good faith effort with respect to the interactive process is a defense to damages just as it is with title I of the ADA.
  7. EEOC has to come up with regulations within one year of Pres. Biden signing the bill. The regulations implementing the statute with respect to Congress must parallel the EEOC regulations.
  8. There is a forcible waiver of State sovereign immunity.

IV
Pregnant Workers Fairness Act Thoughts/Takeaways

  1. A disability is not necessary for person to be protected by the Pregnant Workers Fairness Act.
  2. Reasonable accommodations and undue hardship mean the same thing as the ADA and that is in the statute. Interesting question as to whether putting this in the statute would allow the Supreme Court to say that undue hardship and reasonable accommodation can mean something different with respect to religion than it does with respect to the ADA and the Pregnant Workers Fairness Act because analogous statutory language and final regulatory language do not exist in the religious accommodation area. Also, while the law theoretically applies to religious employers, don’t forget about Our Lady of Guadalupe and Hosanna-Tabor, here and here for example.
  3. Interactive process is specifically in the statute. With respect to the ADA, it only appears in the title I regulations but has been adopted widely throughout title I-III jurisprudence.
  4. In the unlawful employment practices section of the Act, the very first subsection implicitly says that the ADA’s concept of fundamental alteration found in title II and title III of the ADA is very much in play.
  5. I have said for years that employers should go slowly with respect to insisting on leave rather than engaging in the interactive process and coming up with a reasonable accommodation. Subsection 4 of the unlawful employment practices section makes clear that employers cannot do this. I would expect that ADA plaintiff side lawyers use this particular provision by analogy against employers that force people on leave instead of engaging in the interactive process to see what accommodation may work for an employee with a disability.
  6. The Act extends to terms, conditions, and privileges of employment.
  7. Good faith efforts are a defense to damages just like in the ADA.
  8. Sovereign immunity is forcibly waived. It will be interesting to see how the courts feel about that with respect to the Act’s congruence and proportionality to the harm being redressed. Keeping in mind that since women are in the intermediate class for purpose of equal protection jurisprudence, one has to figure that the odds would be quite high that courts would find sufficient congruence and proportionality and uphold the law as being constitutional.
  9. The use of the term “based on,” means that causation is but for as detailed in Bostock, discussed here.
  10. The Act means the confusion created by the Supreme Court in Young is now clarified by statute.
  11. Previously, I have said in many a presentation that it is important to think ADA when accommodating pregnancy as a matter of preventive law, this Act now mandates such thinking.

Today’s blog entry is my yearly wrap up of the most popular blog entries for 2022. As I always do, there are some additional blog entries that I keep in the greatest hits category due to what I believe is their significance even though they may not be the most popular. With respect to the most popular for 2022, we did have the blog entry discussing being careful about taking working accommodations away dropped off. The others are either in the most popular or continue to be of particular significance. Here is the list for 2022. My thanks to all my blog readers. Writing this blog, it definitely the most favorite part of my law and consulting practices from the least popular to the most popular.

 

  1. The California ESA bill received 517 views. I also recommend the blog entry discussing the Illinois approach as well.
  2. Just what is a private club received 517 views.
  3. The DOJ statement on the ADA is a nondelegable duty received 535 views.
  4. A relatively recent blog entry discussing how title III standing is undoubtedly headed to the United States Supreme Court received 572 views.
  5. What do you have to show to get compensatory damages under title II received 621 views.
  6. How sovereign immunity applies to Indian tribes received 641 views.
  7. Supreme Court cases where they have been and where they are going received 758 views. Keep in mind that the upcoming term is likely to have more cases that would be relevant to this particular blog entry.
  8. The latest HUD circular discussing animals and housing received 759 views.
  9. Where does an independent contractor turn if they are discriminated against on the basis of disability received 1037 views.
  10. Can you get compensatory and punitive damages in retaliation cases received 1553 views.
  11. Does the ADA and §504 allow for disparate impact claims received 1715 views.
  12. The Iowa Supreme Court case of Cohen v. Clark, with discusses conflict thing obligation between the owner of an ESA and people needing a no pet policy, received 1776 views.
  13. In first place, the ADA and the applicable statute of limitations with 3999 views.

 

It isn’t really surprising that the list is dominated by remedies questions. After all, law, some would say unfortunately so, is a business. Again, there are other blog entries in this greatest hits categories that do not make the list but I keep them on because of their overall significance.

 

Happy holidays y’all.

Before getting started on the blog entry of the week, a couple of housekeeping matters. First, my daughter comes home from her first semester freshman year Thursday evening. It is a long break for her. We do have travel plans the week after Christmas. There are also a few days in January before she goes back where there are travel plans. I may or may not have a business trip in January as well. So, the blog entries in terms of their timing of when they appear during the week or when they appear at all may be hit or miss for a little while. I don’t think you can expect a blog entry the week after Christmas. Also, the week of January 9 might not see a blog entry either. Otherwise, my plan is to get up blog entries over that period of time, which will go into the third week of January, but the particular day of the week it goes up may vary more than usual. After this blog entry, my next blog entry is going to be the top 10ish blog entries of the year.

 

Turning to the blog entry of the day, it is a published decision from the Eighth Circuit decided on December 1, 2022, Alberty v. United States of America, here. My thanks to Prof. Leonard Sandler, a clinical law professor at the University of Iowa for sending the case along to me. The case asks the question of what happens when a federal courthouse is not accessible to a person with a disability, a person gets injured as a result of that, and sues for personal injuries. Does the federal government get a get out of jail free card on the grounds of sovereign immunity for tort claims? As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the discretionary functions exception to the Federal Tort Claims Act waiver of sovereign immunity applies; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Alberty is in his sixties and has a visual impairment. The building’s east exit, where Alberty fell, has concrete stairs leading down to a sidewalk. At the top of the stairs are four concrete bollards, each separated by a few feet of space. Running along either side of the stairs is a flat area, level with the top step. The parties refer to these areas as the “south walk” and the “north walk.” The walks meet the sidewalk at a twenty-six-inch vertical drop. As Alberty left the building, he noticed the concrete bollards. He presumed they were meant to deter pedestrians from proceeding past them. So he went around them, along the south walk. When he reached the end of the south walk, he fell onto the sidewalk below, breaking his leg and elbow. The injuries required two surgeries followed by several months of physical therapy. Alberty brought a tort claim against the government alleging that it was negligent in designing and maintaining the paved walkway outside the building. The federal government defended on sovereign immunity grounds.

 

II

Court’s Reasoning That the Discretionary Functions Exception to the Federal Tort Claims Act Waiver of Sovereign Immunity Applies

 

  1. The Federal Tort Claims Act (FTCA), 28 U.S.C. §1346 here, authorizes district courts to hear suits against United States for personal injury. That waiver is limited and contains an exception involving discretionary functions performed by a government agent.
  2. The discretionary exception applies when the government’s agent, in this case the Gen. Services Administration, acts pursuant to its discretion and that discretion implicates policy considerations.
  3. In figuring out whether discretion is involved there are two questions that are asked. First, whether it involves an element of judgment or choice that of being controlled by mandatory statutes or regulations. Second, whether the government employee’s judgment or choice was based on considerations of social, economic, and political policy.
  4. The discretionary decision needs only to be susceptible to policy analysis regardless of whether the employee actually engaged in conscious policy balancing and regardless of whether the discretion involved was abused.
  5. The burden is on the plaintiff to rebut the presumption that discretion is grounded in policy considerations.
  6. For a plaintiff to show subject matter jurisdiction when the discretionary exception is involved, the plaintiff must show either: 1) the government’s decisions about the south walk design did not involve an element of judgment or choice; or 2) if the government had such discretion, it was not grounded in policy considerations.
  7. While the Gen. Service Administration’s website talks about being committed to making federal buildings and facilities fully accessible to all people and ensuring the full integration of individuals with disabilities using governmental facilities, Alberty points to no statute, regulation, or policies behind that commitment. Without more, the website commitment to accessibility lacks the required specificity and mandatory language necessary to strip government employees of discretion. So, Alberty has not shown that the accessibility commitment is anything more than aspirational or a general principle. In short, whether and how to achieve the accessibility commitment are discretionary decisions.
  8. 40 U.S.C. §3312 is of no help either because the statute talks about accessibility to the maximum extent feasible as determined by the Administrator. The statute also does not even specify a particular building code, so the Administrator presumably retains discretion not only how of how to comply but over which code to comply with when codes conflict deviate from one another. Accordingly, Alberty has not pointed to any statute or mandatory regulations that constrain the Gen. Service Administration’s discretion over the building design.
  9. The design of the walkway involves social, economic, and political policy considerations like public safety, cost of design and material, and aesthetics. The GSA report that Alberty cites to show that the building’s exterior was renovated in 2003 even states some of the policy considerations behind that decision.
  10. Discretion over safety warnings are susceptible to policy choices due to the need to balance safety against governmental efforts and costs and the need for professionals on the ground to adapt to the conditions they face in determining how to expend limited resources in the effort to identify dangers.
  11. While Alberty may have been a single individual who fell in a single location, the design and warnings or lack thereof at that location goes to broader policy considerations affecting the broader public like safety, costs, and aesthetics.

 

III

Thoughts/Takeaways

 

  1. The dismissal was without prejudice.
  2. The decision is published.
  3. Unlike the case we discussed here, no state law claim was filed. An important difference between that case and the one discussed here is that there are no private parties involved in Alberty.
  4. No §504 claim was filed.
  5. No claim with the Architectural Access Barrier Board was filed before bringing suit.
  6. Whether policy analysis is involved is a very low bar for the government to meet. In other words, it would be almost impossible for a plaintiff to meet the burden of showing that policy analysis is not involved.
  7. This case is so broad that if a person is injured in a building constructed or altered by the Gen. Services Administration, you can forget about personal injury suits under the Federal Tort Claims Act.
  8. Too early to tell whether this case would be appealed to the United States Supreme Court or a rehearing en banc would be sought. However, it’s hard to believe that either approach would be successful.
  9. If other parties besides the federal government are involved when it comes to accessing the federal courthouse, there may be workarounds to this decision, such as we discussed here. Also, as we discussed some time ago it is possible to use the ADA Architectural Guidelines as a basis for a negligence per se claim in some States. See here for example.

Before getting started on the blog entry of the week, I want to congratulate the United States Soccer Men’s National Team on a valiant effort at the World Cup. Hopefully, a harbinger of good things to come. Also, things in Georgia are a bit bonkers at the moment. UGA is a number one seed in the college football playoffs, and we have an election on December 6, 2022, that just about everybody in the country is following. My family voted early. As for UGA, it is hard to explain to people that do not live in Georgia the impact that UGA has on the mindset of those in Georgia regardless of whether you attended there or not. If you do have a team in the college football playoffs, I wish you luck. For the first time in quite a while, there are two Big Ten teams in it.

 

Today’s blog entry is going to be a short one. I also expect within the next couple of weeks to do my annual most popular blog entries of the year report. The case of the day is Piotrowski v. Signature Collision Centers decided by the Eastern District of Pennsylvania on October 8, 2021, here. It talks about what does interference mean with respect to a person who sues for interfering with his or her or their’s protected rights. We previously blogged on how to prove up an interference claim, here, but that case didn’t really answer what is an interference claim in terms of its definition. This blog entry is really short. Even so, it is still divided into categories and they are: facts; court’s reasoning that plaintiff’s ADA interference claim can go forward; and thoughts/takeaways. The blog entry is so short that I can’t imagine not reading all of it.

 

I

Facts

 

In the first days of Covid-19 related shutdowns, plaintiff emailed his employer to explain that he had diabetes, was a person with a disability, and to request and propose accommodations. The employer kept moving the goalposts: 1) informed plaintiff he could use sick days or paid time off to cover absences; 2) after plaintiff reiterated his initial request and included multiple links to government issued articles addressing reasonable accommodations under the ADA in preparation for the pandemic, which included working from home and telework, telling the plaintiff that he had to be physically present to perform the essential functions of his position and that any additional days would be unpaid if not already covered by sick leave; 3) after plaintiff submitted notes from his endocrinologist stating that he was immunosuppressed due to his diabetes and to remain off for two weeks (plaintiff sent subsequent emails as well), the employer told him that his Dr.’s note did not mention a reasonable accommodation for disability; 4) after providing the employer with the second Dr.’s note, the employer told him that they would not provide him with any additional sick leave because the second Dr.’s note did not advise him to quarantine; and 5) never providing the plaintiff with exactly what the employer needed from his doctor with respect to a note even though his employer said they would get that language to him.

 

On April 1, 2020, plaintiff received an email from his employer asserting that he had abandoned his position because he failed to send a follow-up email and/or submit a third Dr.’s note to his employer. He then filed a lawsuit a little over a year later.

 

II

 

Court’s Reasoning That Plaintiff’s ADA Interference Claim Can Go Forward

 

  1. The Third Circuit has not set forth the elements of an ADA interference claim. However, the Seventh and Ninth Circuits have adopted the test for anti-interference claims under the Fair Housing Act.
  2. Citing to a case that we discussed here, the Third Circuit has held that under the Fair Housing Act, courts should give the word “interference,” its dictionary definition, which is the act of meddling in or hampering an activity or process.
  3. The employer moving the goalposts by constantly asking for more information constitutes conduct meddling in or hampering plaintiff’s ability to invoke his rights under the ADA.

 

III

Thoughts/Takeaways

 

  1. This is not the only case saying that interference refers to meddling or hampering. See this case for example: Equal Emp’t Opportunity Comm’n v. Geisinger Health, Civil Action 21-4294-KSM (E.D. Pa. Oct. 17, 2022).
  2. Common ways that I see interference claims would be a supervisor discouraging a person from requesting reasonable accommodations. In the higher education world, a professor putting obstacles in place with respect to what has been worked out between disability services and the student with a disability.
  3. Meddling or hampering is not a high standard.
  4. For proving up such a claim, Frakes, is an excellent place to start.
  5. Be wary of making excessive documentation requests. We discussed one such case here. Also, as this blog entry makes clear, asking for documentation when it isn’t necessary to do so may set the employer up for an interference claim.
  6. I really like the Samper case out of the Ninth Circuit, which we discussed here, for figuring out when telework or remote work is something that should be allowed under the ADA. That said, I do think the Samper factors need to be revised slightly in light of what we have learned over the pandemic. More specifically, those factors as amended for the Covid-19 pandemic lessons would be: 1) the employee must work in person as part of the team; 2) the job requires in person face-to-face interaction with clients and other employees; or 3) the job requires the employee to work with items and equipment that are on site. Adding the in person requirements to criteria ##1-2, is excellent preventive law in light of the pandemic.
  7. As we discussed here, unreasonable delay in granting an accommodation is actionable.

Hope everyone had a great Thanksgiving weekend.

 

Before getting started on the case of the day, I wanted to let everyone know that I have updated two blog entries in the Understanding the ADA blog. First, last week’s blog entry discussing how people in California who associate with a person with a disability have a right to have Batson challenges exercised on their behalf has been updated to also reference an earlier case, this one out of the Fifth Circuit, which said that a wheelchair user had standing to pursue inaccessibility of the courthouse claims because he had been called for jury duty in the past and likely would be called for jury duty in the future. Second, the blog entry discussing the football player who claimed disability discrimination because he was unable to wear a visor per a referee’s decision, that he needed in order to play the game safely (he did wind up suffering an injury when he could not wear the visor), was dismissed. Case was dismissed on the grounds that the Labor-Management Relations Act preempted the New Jersey Law Against Discrimination claims and that he did not file with the EEOC within 300 days so he did not properly exhaust administrative remedies per the ADA. The original blog entry on the Miles case along with the update can be found here at the end of that blog entry.

 

The case of the day is Gray v. FleetPride, Inc., 21 C 4981 (N.D. Ill. Oct. 17, 2022), here, decided by Magistrate Judge Sunil R. Harjani of the United States District Court for the Northern District of Illinois on October 17, 2022. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of disability under the ADA; court’s discussion that plaintiff sufficiently alleged an actual impairment; court’s reasoning that plaintiff sufficiently alleged that he was regarded as having a disability; court’s reasoning that plaintiff sufficiently alleged a failure to accommodate an actual disability by not even engaging in discussions of reassigning him to a vacant position; plaintiff did adequately request an accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Gray, the plaintiff, was employed by Midway Truck Parts as a Driver beginning on March 29, 1999. Midway Truck Parts was acquired by FleetPride in about 2011, and Gray remained employed as a Driver by FleetPride.  On December 22, 2016, Gray was injured on the job while making a delivery.  Almost five months later, on May 18, 2017, Gray provided FleetPride with a letter from his physician releasing him to return to work with restrictions. In particular, Gray’s physician’s letter stated that he could return to work on May 22, 2017 with permanent restrictions that he should be precluded from lifting more than 35 pounds and limited to pushing and pulling at 150 pounds. Due to his restrictions, Gray told FleetPride that he was willing and able to either work in a new position or a position in an alternative location.  Then, on May 22, 2017, FleetPride discharged Gray, stating “since your restrictions are permanent, unfortunately we are unable to accommodate.” Defendant moved to dismiss the complaint.

 

II

Court’s Discussion of Disability under the ADA

 

  1. The ADA explicitly directs at 42 U.S.C. §12102(4)(A), that disability has to be construed in favor of broad coverage.
  2. The ADA defines major life activities at 42 U.S.C. §12102(2)(A), to include lifting and working.
  3. With the amendments to the ADA, the impairment does not need to prevent or significantly or severely restrict an individual from performing a major life activity in order to be considered substantially limiting.
  4. The question is whether a plaintiff is limited as compared to most people in the general population.
  5. A plaintiff must allege that he is disabled but that he also can still do the job with or without reasonable accommodations.

 

III

Court’s Discussion That Plaintiff Sufficiently Alleged an Actual Impairment

 

  1. Plaintiff alleged an actual impairment because he stated in his complaint that he suffered an on-the-job injury on December 22, 2016, requiring him to be off work until May 22, 2017. He also said that lifting and his ability to push and pull were limited due to his injury. His physician said that he could return to work on May 22, 2017 but should not lift over 35 pounds and had a restriction of pushing and pulling at 150 pounds. He also alleged that his postinjury condition and corresponding permanent physical restrictions substantially limited daily life as well as caused him pain.
  2. Lifting and reaching are major life activities under the ADA.
  3. A substantial limitation need not be severe and the complaint adequately sets forth facts to be able to infer that plaintiff is limited in lifting and reaching as compared to most people in the general population.
  4. The facts are sufficient for the court to reasonably infer that plaintiff is unable to perform any driver position requiring deliveries. More specifically, he alleged that his physical impairment combined with pain prevented him from performing the driver position. Since he is not able to work as a driver making deliveries, it is reasonable to infer that he would not be able to perform a variety of delivery driver positions and therefore, is substantially limited in his ability to work in the class of jobs or a broad range of jobs.
  5. The fact that plaintiff believed he could still work and was qualified for several other positions at his employer is not a bar to plaintiff’s claim that he had an actual disability. The ADA does not require a plaintiff to show that he is totally unable to work to be considered substantially limited in any of his major life activities. [The interplay between SSDI and the ADA is something we discussed here].
  6. Per 29 C.F.R. §1630.2(j)(1)(ii), an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.
  7. The Seventh Circuit has not addressed the issue of whether lifting restrictions are substantial limitations under the standards outlined in the amendments to the ADA but they likely are: 1) the amendments make the standard for qualifying as a person with a disability more inclusive; 2) the amendments was passed to ensure that the ADA’s definition of disability with construed in favor of broad coverage; 3) the amendments made the question of whether an individual’s impairment was a disability not one for extensive analysis; 4) the term “substantially limits,” after the amendments is construed broadly in favor of expansive coverage and not meant to be a demanding standard; and 5) the appendix to the EEOC’s amended regulations specifically mention lifting as a major life activity and describes how then such a person could be substantially limited in the major life activity of working; and 6) numerous cases after the amendments to the ADA have held that a lifting restriction may substantially limit a major life activity.

 

IV

Court’s Reasoning That Plaintiff Sufficiently Alleged That He Was Regarded As Having a Disability

 

  1. After the 2008 amendments to the ADA, a plaintiff need not show that the employer regarded the plaintiff as having an impairment that substantially limits one or more life activities with respect to regarded as claims.
  2. The standard requiring a plaintiff to show that an impairment substantially limits his or her ability to perform a class of jobs or a broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities with respect to the major life activity of working, only applies to the actual disability prong of the ADA. So, plaintiff does not need to claim that the employer believed he had an impairment substantially limiting the major life activity of working in a regarded as claim.
  3. Despite being told by the plaintiff that he was willing to work at other locations and of his disabilities, the employer terminated his employment two days later. The fact that the employer terminated the plaintiff as soon as it became aware of his restrictions and after requesting accommodations raises a plausible inference that plaintiff was terminated because of a perceived impairment. In fact, the termination notice said that they could not accommodate because his restrictions are permanent. All of that means that plaintiff sufficiently alleged that the employer viewed his physical condition as disqualifying from performing his specific delivery driver job and that the employer regarded him as unable to perform a broad class of jobs by not allowing him to return to work in any job or capacity.

 

V

Court’s Reasoning That Plaintiff Sufficiently Alleged a Failure to Accommodate an Actual Disability by Not Even Engaging in a Discussion of Reassignment

 

 

  1. While a person covered only under the regarded as prong is not entitled to a reasonable accommodation, this case involved actual disability claims as well.
  2. The duty to accommodate the employee with a disability may include reassignment to a vacant position.
  3. Citing to a case we have discussed previously, here, the ADA mandates an employer reassign a qualified person with a disability to a vacant position.
  4. As part of an employer’s duty to accommodate by means of job reassignment, an employer is required to identify the full range of alternative positions for which the individual satisfied the employer’s legitimate nondiscriminatory prerequisites. It also must consider transferring the employee to any of these other jobs, including those representing a demotion. In other words, the employer has a duty to assist with identifying open positions as part of the interactive process following an employee’s request for reasonable accommodations.
  5. The employer here responded to plaintiff’s request for reassignment by telling him that since his restrictions were permanent they were unable to accommodate and terminated him with no further action or communication. Those allegations plausibly reflect that the employer did not communicate with the plaintiff and attempt to ascertain whether he had a position available for what the plaintiff might have been qualified. Accordingly, such conduct may amount to refusal to engage in the interactive process. Plaintiff also made allegations that the employer had to have had a position that he was qualified for due to the nature of its operations and his working relationship with numerous locations of his employer.
  6. Since the employer did not engage in the interactive process, plaintiff was not required to actually identify in his complaint an open position at his employer. Instead, at this stage it was sufficient for the plaintiff the state that it was plausible that his employer had open positions and had refused to engage in the interactive process so as to deprive him of the opportunity to explore open positions as a reasonable accommodation.
  7. If discovery reveals no vacant position existed to which plaintiff could have been reassigned to, the employer is free to bring up that fact at summary judgment proceedings. In a footnote, the court notes that whether a vacant position exists is determined at the time the employee requested reassignment to that position.

 

VI

Plaintiff Did Adequately Request an Accommodation

 

  1. A request as straightforward as asking for continued employment is a sufficient request for accommodation.
  2. The allegations in the complaint are clear that plaintiff made a request for continued employment and sought reassignment to another position.

 

VII

Thoughts/Takeaways

 

  1. For many years now, whenever working is alleged as a major life activity, it essentially becomes an SSDI analysis. This case says that isn’t correct. Here, the focus by the court was on the type of job that the person had and then they extended that across industries. Even so, a plaintiff attorney makes a serious mistake by alleging working as a major life activity due to the broad class of jobs standard interpretation over the years. It also isn’t necessary as a general rule in light of the amendments to the ADA.
  2. The Seventh and Eighth Circuits are extremely aggressive about employers having the obligation to reassign an individual to a vacant position they are qualified for if they are no longer qualified for their current position.
  3. For regarded as claims, it is no longer after the amendments to the ADA necessary to show that the employer believed a major life activity was substantially limited. All a plaintiff has to show is that the employer regarded the person as suffering from a mental or physical impairment.
  4. A person claiming regarded as discrimination is not entitled to reasonable accommodations.
  5. In the Seventh and Eighth Circuits, the employer has an obligation, especially when asked, to identify open positions as part of the interactive process. In the 11th Circuit, as we discussed here, the rule is quite a bit different.
  6. A bit strange to me that the termination notice said that because the restrictions were permanent, the employer was unable to accommodate. The permanency of the restrictions should not matter. The question is whether the person can do the essential functions of the job with or without reasonable accommodations. Also, ignoring the reassignment option is a recipe for disaster.
  7. The case law is very clear that reassignment is an option of last resort.
  8. Of course, plaintiff will have to get by the summary judgment motion later but for now plaintiff lives for another day.
  9. Magic words are not required.
  10. This is not the first case that has said that asking for continued employment is a sufficient request for accommodations.