I recently blogged on the EEOC guidance on the hearing disabilities in the workplace, here. I noted several problems with it. Not the least of which was how it confused Deaf, deaf, and Hard of Hearing. There were some other issues as well. That isn’t to say that the guidance did not contain its good points as it most certainly did. I have also seen lawyer after lawyer take the guidance as gospel without considering the specifics of the hearing loss community. I was certainly expecting that to happen even if it is unfortunate. I have previously written that I am generally not a fan of guidances because lawyers will just take them uncritically and offer them to their client as a way of complying with the ADA. There are some exceptions to that rule when it comes to guidances, such as here, but they are few and far between. After reading one too many of these uncritical looks at this EEOC guidance and their lack of understanding about how the hearing loss community is not monolithic, I thought it would be worthwhile to assess whether this guidance would survive Kisor v. Wilkie. As usual, the blog entry is divided into categories and they are: 1) when Kisor deference is in order; 2) how does the guidance play out under the majority opinion in Kisor; 3) how does the guidance play out under Justice Gorsuch’s opinion in Kisor; and 4) thoughts/takeaways. As this is a short blog entry, you probably will wind up reading the whole thing.
When Kisor Deference Is in Order
As we discussed in my blog entry discussing Kisor, here, Chief Justice Roberts in his concurring opinion nicely summarized the two approaches for figuring out whether Kisor deference would be in order. The majority opinion said that it came down to the following: 1) the underlying regulation must be genuinely ambiguous; 2) the agency’s interpretation must be reasonable and must reflect its authoritative, expertise based, and fair and considered judgment; and 3) the agency must take account of reliance interest and avoid unfair surprise.
Chief Justice Roberts noted that Justice Gorsuch had a different formulation. Justice Gorsuch’s formulation said that a court might be persuaded by the interpretation of the regulation if the court found: 1) the agency considered the problem; 2) the agency offered a valid rationale; 3) the agency brought its expertise to bear; and 4) the agency interpreted the regulation in a manner consistent with earlier and later pronouncements.
How Does the Guidance Play Out under the Majority Opinion in Kisor?
- The EEOC doesn’t have any effective communication regulations, though 29 C.F.R. 1630.2(o)(2)(iii), does talk about auxiliary aids so to speak. Therefore, you could say that the regulation is arguably ambiguous with respect to hearing disabilities in the workplace.
- Is the EEOC’s interpretation reasonable? I don’t see how it is reasonable to assume that deaf, Deaf, and HOH can lead you to the same answers. That also creates a question as to how expertise based and how fair and considered the judgment was in drafting the guidance.
- Is the guidance authoritative? People may not realize that guidances actually come in different shapes and forms. For example, it is possible that a guidance could come from the Chair of the EEOC’s office by itself or it could be something voted on by all the Commissioners regardless of the office that it comes from. Which type the hearing disabilities in the workplace guidance is might very well be important with respect to assessing the authoritative piece mentioned in the Kisor majority opinion.
- Since another document was revised by this EEOC guidance, I would have to compare the older document with this EEOC document in order to assess any reliance interest or any unfair surprise.
How Does the Guidance Play Out under Justice Gorsuch’s Opinion in Kisor?
- The EEOC certainly considered the problem or we wouldn’t have a guidance in the first place.
- Did the EEOC offer a valid rationale? Perhaps. Certainly, lots of folks would be interested to know what the EEOC was thinking with respect to accommodating hearing disabilities in the workplace since hearing disabilities in the workplace are not unusual.
- Did the EEOC bring its expertise to bear? That is a harder question because of the nonsensical nature of several of the hypotheticals. Certainly, the EEOC brought its expertise to bear, but the question is whether the EEOC had to demonstrate it had expertise in the way it discussed the problem. An argument exists that the EEOC did not demonstrate expertise because of the way it conflated Deaf, deaf, and HOH.
- Did the EEOC interpret the regulation in a manner consistent with earlier and later pronouncements. Previously, the EEOC had issued a document on May 7, 2014, entitled “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act.” I have not compared the 2014 document with this document.
- In my opinion, the EEOC guidance on hearing disabilities in the workplace fails either of the approaches found in Kisor.
- With respect to the majority approach, an argument exists that: 1) the EEOC’s interpretation was not reasonable; and 2) the EEOC’s interpretation might not be authoritative. I would want to conduct further investigation in terms of how the guidance actually came into existence. For example, did it emanate from the Chair only or did all the commissioners vote on it. The answer to that question might make a difference with respect to how authoritative a court would view the guidance.
- Can an agency be said to have brought its expertise when it fundamentally misconstrues the nature of the community that is the subject of the guidance? I’m not sure the answer to that question would be yes.
- I would have to compare the 2014 document with this document to see if reliance interest or unfair surprise was involved. It is possible sometimes that a guidance can make things worse than what existed before. We certainly saw a new guidance be much more complicated and perhaps worse than an old guidance with respect to the latest HUD circular dealing with animals in housing, which we discussed here.
- Guidances should never be a substitute for critical thinking. If you are on the plaintiff side and an employer slavishly follows this EEOC document on hearing disabilities in the workplace and defends on that basis, you might consider arguing that the guidance should not be given any deference for the reasons stated in this blog entry.
- A separate question exists as to whether parts of the document could be given deference while other parts of the document are not given deference. I am not sure how a court would approach that situation. In another life, I did a fair amount of contract law. Often times, the question would be whether the whole contract would go down in flames if one section of the contract went down in flames. On the contract side, you get around that by putting in a clause stating that if one clause fails the rest of the contract remains. I don’t know if the same logic would apply to a guidance.
Good luck to all if you have a team or teams in the NCAA tournament.