Sometimes I just don’t know until the last minute as to what case I will blog on for the week. I originally thought I would blog on a religious accommodation case. Then, this morning I saw a Fifth Circuit decision involving mandatory reassignment. Right when I was finishing up reading that decision, I saw an email come in from my colleagues in the Deaf and Hard of Hearing Bar Association saying that the Supreme Court had just decided Perez v. Sturgis Public Schools, opinion here, which I have previously blogged on before here. Once I saw that email, there was no question as to what I would blog on for this week. Since I have previously blogged on this case, there is no need to go into the facts of the case. So, the blog entry is divided into the categories of Court’s reasoning that plaintiff need not exhaust IDEA before filing suit for violations of the ADA, and thoughts/takeaways. The opinion was unanimous and was written by Justice Gorsuch.

 

I

Court’s Reasoning That IDEA Need Not Be Exhausted First Prior to Filing the ADA Claim

 

  1. IDEA in 1415(l) has two critical features to it. First, it states that nothing in IDEA shall be construed to restrict the ability of individual to seek remedies under the ADA or other federal laws protecting the rights of children with disabilities. Second, IDEA contains a qualification prohibiting certain suits where those suits seek relief available under IDEA, then the procedures in IDEA must be exhausted first. With respect to that exception, IDEA goes on to say that affected children and their parents have a right to a due process hearing before a local or state administrative official followed by an appeal to the state education agency.
  2. The first clause of §1415(l) focuses the attention on remedies. A remedy denotes enforcing a right and may come in the form of money damages, an injunction, or a declaratory judgment. The statute then proceeds to instruct that nothing in the IDEA shall be construed as restricting or limiting the availability of any remedies under other federal statutes such as the ADA.
  3. The limiting language in the IDEA does not apply to all (emphasis in opinion), suits seeking relief that other federal laws provide. Instead, the administrative exhaustion requirement applies only (emphasis in opinion), to suits seeking relief also available under IDEA. That particular condition is not met in situations like Perez where the plaintiff brings a suit under another federal law for compensatory damages, which is a form of relief everyone agrees IDEA does not provide.
  4. Admittedly, this logic treats remedies as being synonymous with the relief a plaintiff seeks. However, a number of contextual clues persuaded the Court that is exactly how an ordinary reader would understand this particular provision of the IDEA.
  5. 1415(l) begin by directing a reader to the subject of remedies by offering first a general and then a qualifying rule on the subject. Also, in at least two other places, IDEA treats remedies and relief as synonyms. The Court could not conceive a persuasive reason why IDEA would operate differently only in this section.
  6. 1415(i)(2)(C)(iii) direct courts in IDEA cases to grant such relief as the court determines is appropriate. That statutory instruction authorizes a court to grant as an available remedy (emphasis in opinion), reimbursement of past educational expenses. Elsewhere, IDEA, §1415(i)(3)(D)(i)(III), sometimes bars those who reject the school district’s settlement offer from recovering attorney’s fees for later work if the relief (emphasis in opinion), finally obtained is not more favorable than the offer. Here again, relief means the same thing as remedy.
  7. Other provisions in the U.S.C. treat remedies and relief as synonyms. For example, in 18 U.S.C. §3626(d) that provision provides that the limitations on remedies in that section shall not apply to relief (emphasis in opinion), entered by a State court based solely upon claims arising under state law. Also, 28 U.S.C. §§3306(a)(2)-(3) indicatethat United States may obtain a remedy (emphasis in opinion), under this chapter or any other relief (emphasis in opinion), the circumstances may require.
  8. Influencing the Court’s thinking is the fact that the second clause in §1415(l) refers to claims seeking (emphasis in opinion), relief available under IDEA. To seek relief is to ask for or request according to the Oxford English dictionary. Further, often enough the phrase seeking relief or some variant of it in the law refers to the remedies a plaintiff requests. For example, under the Federal Rules of Civil Procedure, a plaintiff’s complaint must include a list of requested remedies, or what the law calls a demand for the relief (emphasis in opinion), sought.
  9. Many Supreme Court opinions similarly speak of the relief a plaintiff seeks as the remedies the plaintiff requests.
  10. Fry is of no help to the defendant because it went out of its way to reserve the question now before the Court in Perez.
  11. In Fry, the Court held that the IDEA exhaustion requirement does not apply unless the plaintiff seeks relief for the denial of a free and appropriate public education because that is the only relief IDEA administrative processes can supply. This case presents an analogous but very different question, which is whether a suit admittedly premised on the past denial of a free and appropriate education may nonetheless proceed without exhausting IDEA’s administrative processes if the remedy plaintiff seeks is not one IDEA provides. In either case, a plaintiff need not exhaust administrative processes under IDEA because those processes cannot supply what the plaintiff seeks.
  12. It is the Court’s job to apply faithfully the law Congress has written. It is not up to the Court to replace the actual text of the law with speculation as to congressional intent.
  13. Under Supreme Court decisions, a plaintiff who files an ADA action seeking both damages and the sort of equitable relief IDEA provides may find his request for equitable relief barred or deferred if he has yet to exhaust IDEA remedies.
  14. It isn’t difficult to imagine that a rational Congress might have sought to temper demand for administrative exhaustion when a plaintiff seeks a remedy IDEA can supply with a rule of not requiring exhaustion when a plaintiff seeks a remedy IDEA cannot provide.
  15. It isn’t necessary for the Court to deal with the issues raised at oral argument about whether a judge made futility exception exists and whether Perez can obtain compensatory damages in his title II of the ADA suit because there isn’t any reason to address those issues at this time in light of the reasoning in this opinion. In the proceeding below, the court held that the IDEA exhaustion requirement included plaintiff’s ADA lawsuit and that is simply not the case.

 

II

Thoughts/Takeaways

 

  1. Unanimous opinion! From the oral argument, it looked like it might have been Justice Alito in sole dissent.
  2. The issue of when a free appropriate public education is involved will now become paramount. We previously predicted that might be the case in this blog entry when we discussed a case talking about how a free appropriate public education under IDEA necessarily involves specialized instruction. Expect lots and lots of litigation over whether specialized instruction is involved. 504 plans can include specialized instruction pieces. Plaintiff attorneys may want to think twice about doing that if they want to avoid exhaustion litigation.
  3. A plaintiff will have to exhaust administrative remedies where they have both IDEA concerns as well as ADA concerns.
  4. School districts often have an internal procedure for dealing with both IDEA and §504/ADA claims that are identical to each other. That simply will not work anymore.
  5. 504 also refers to a free and appropriate public education but that does not even come close to the same meaning as a free and appropriate public education under IDEA. This case makes it important that §504 plans do not blur into the specialized instruction of IEP’s (See also 2 above). Think of §504 as getting a person with a disability to the same starting line. On the other hand, think of IEP’s as trying to achieve specific goals while utilizing specialized instruction.
  6. Per Cummings, which we discussed here, a §504 claim does not allow for emotional distress damages.
  7. The Court specifically says that it is not going to deal with the question of whether title II of the ADA allows for compensatory damages. I do expect that question to come before the Court eventually. There are two things to keep in mind with respect to that. First, the remedy provisions of title II of the ADA, 42 U.S.C. §12133, refers to 29 U.S.C. §794a in total and not to any specific provision. Therefore, the argument is created that all of the remedies in §794a are in play. Second, title II of the ADA is not spending clause legislation but legislation based upon enforcing the rights of persons with disabilities per the 14th amendment to the U.S. Constitution.
  8. In my experience with matters that have come across my desk, school districts are very familiar with IDEA. They are also familiar with §504 with respect to “§504 plans.” They are less familiar with §504 in general. They are often not as aware as they should be about title II of the ADA. This case forces school districts get up to speed on title II of the ADA and on §504 outside of the “504 plans.”
  9. In light of this decision, this blog entry discussing how IDEA is fundamentally a matter of specialized instruction is now mandatory reading.
  10. It will be interesting to see if school districts try to convert §504 plans to IEP’s to ensure that IDEA processes become involved.
  11. 504 damages means having to show intentional discrimination, such as deliberate indifference per this case.
  12. This decision definitely changes the balance of power between school districts and the parents of those with kids with disabilities.
  13. Did I mention that the decision was unanimous?

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.

 

I

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.

 

II

How Does the Guidance Play Out under the Majority Opinion in Kisor?

 

  1. 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.
  2. 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.
  3. 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.
  4. 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.

 

III

How Does the Guidance Play Out under Justice Gorsuch’s Opinion in Kisor?

 

  1. The EEOC certainly considered the problem or we wouldn’t have a guidance in the first place.
  2. 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.
  3. 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.
  4. 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.

 

IV

Thoughts/Takeaways

 

  1. In my opinion, the EEOC guidance on hearing disabilities in the workplace fails either of the approaches found in Kisor.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

 

 

Before getting started on the blog entry of the week, I want to acknowledge a great loss for the disability rights community. Judy Heumann died two days ago. She was a pioneer in the disability rights movement. She also led the charge for the final Rehabilitation Act regulations, which took four years to finalize from when the law was passed and testified on behalf of the ADA when the ADA was being considered. For those who may not know Judy Heumann, here is something from NPR talking about her life. I was lucky enough to have a couple of calls with her but unfortunately never met her in person. It is a great loss for the disability rights community. To learn more about her, I highly recommend the movie crip camp and the book Being Heumann, both are fabulous.

 

Turning to the blog entry of the day, I thought I would look at a bill introduced in the California legislature to deal with Internet accessibility litigation. As readers know, if you violate the ADA you also violate the California Unruh Act, which allows for damages unlike title III of the ADA. As a result, California has a great deal of Internet accessibility litigation. We have talked about how tester standing and Internet accessibility is definitely heading to the Supreme Court, here for example. The bill introduced as AB 950 by California State Representative Maienschein, who represents a district encompassing northeast of San Diego, including Escondido among other places. The bill has been referred to the California’s State Assembly’s judiciary committee. As usual, the blog entry is divided into categories, and they are what the legislation does and thoughts/takeaways. Since the entry is so short, you will undoubtedly want to read the whole entry.

 

I

What the Legislation Does

 

  1. Liability under the Unruh act only happens if the website fails to provide equally effective communication or does not facilitate full and equal enjoyment of the entity’s goods and services to the public, including to any member of the public with a disability.
  2. To get statutory damages for Internet website accessibility, a plaintiff must prove one of the following: A) a plaintiff has to show that they personally encountered the barrier that did both of the following: 1) interfered with their ability to access all or part of the entity’s Internet website; 2) caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users so that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled; or B) the plaintiff was deterred from accessing all or part of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public.
  3. An Internet website is presumed to provide equally effective communication for purposes of preventing the minimum statutory damages if the Internet website complies with WCAG 2.1 level AA standard for the accessibility of Internet websites or any more stringent subsequent update, revision, or replacement to WCAG published by the entity that puts out WCAG.
  4. The presumption of the Internet site being accessible affects the plaintiff’s burden of proof and is rebuttable by evidence showing by a preponderance of the evidence the elements of one of the violations mentioned in ¶ 2 above.
  5. Adds a provision to the government code saying that information about compliance with the state’s disability access laws have to include a statement that a business’s website is required to be accessible and provide equally effective communication and facilitate full and equal enjoyment of the entity’s goods and services to the public, including any member of the public with a disability.
  6. Requires the California Commission on Disability Access to review the WCAG standards to determine whether they are the most up-to-date standards for effective communication by means of Internet websites and to notify the legislature they are not up-to-date and should be revised. If those standards are not up-to-date, the Commission has 30 days to notify the leadership of the State Assembly and the State Senate of that fact and that the standard should then be revised.
  7. The bill defines an entity as a business establishment open to the public, a public place, or place of public accommodation.
  8. The bill defines an Internet website as including all Internet web-based technology, including but not limited to, a mobile application or app that can be accessed by a mobile device.

 

II

Thoughts/takeaways

 

  1. I am not a licensed attorney in California even though I did get my first law degree from the University of San Diego (I also have an LL.M. in health law from Depaul University). It is always a good idea to get a licensed attorney in California when interpretation of California state law is involved.
  2. My initial review of the legislation is that it seems highly sensible. It is impossible to tell what will happen to the legislation as it moves forward in the California legislative process. I did recently read that Internet accessibility cases now constitute a majority of the cases filed in federal court that allege disability discrimination.
  3. The legislation includes mobile applications and apps on mobile devices.
  4. The bill does not use the term contained in ADA jurisprudence of, “meaningful accessibility.” However, the language of the bill strongly suggests that meaningful accessibility is what is involved in this bill.
  5. Level AA compliance with the WCAG guidelines will solve most of the accessibility problems but not necessarily all of them. An individualized analysis is key as is setting up systems to work with people to ensure meaningful accessibility when they still do not have full and equal enjoyment of the website even though it is compliant with WCAG level AA.

I have quite a stack of cases in my pipeline to blog on. When I went digging through them, I came across a decision from April 7 of 2022 (that isn’t a misprint). The case is King v. Stuart Trumbull Memorial Hospital, Inc., a published decision from the Sixth Circuit, here, and it has all kinds of interesting tidbits in it that I thought I would pass along. As usual, blog entry is divided into categories and they are: facts; King was a qualified employee; hospital knew or should have known of plaintiff’s disability; plaintiff adequately requested an accommodation; hospital failed to carry out its interactive process obligation; undo hardship has not been shown; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

King, a registered nurse who started working for the hospital in 2002, was diagnosed with asthma as a young adult, which worsened around 2013 and 2014. The asthma was often triggered by stress and seasonal allergies causing intermittent flareups and severe asthma attacks. At times, the flareups left King unable to perform her work duties. Her co-workers occasionally helped her by giving her more stationary tasks. During particularly bad flareups, King could not complete daily tasks like cooking and doing dishes. On those days, King would call in sick and tell the hospital why she could not work that day.

 

To call in sick, King usually called the central staffing office and spoke to the house supervisor who was not always her immediate supervisor. However, King did call her immediate supervisor directly several times saying that she needed time off because of her asthma. In particular, she would tell him that she literally could not breathe and could hardly talk and that she could not get off the couch without being out of breath and wheezing. Her supervisor admitted that he was aware of King’s asthma and that it was common knowledge among the hospital staff. He also knew that King was off work sometimes because of her asthma. Finally, King allegedly told her immediate supervisor that her asthma was so debilitating that it was disabling.

 

The hospital allows employees to seek medical leave of absence to handle personal illnesses and disabilities through two separate channels. One channel is the FMLA. The other channel is the collective bargaining agreement that allowed employees to seek unpaid medical leave even if they were not eligible for FMLA leave. The collective bargaining agreement allows up to one year of non-FMLA leave. In order to apply for the collective bargaining leave an employee has to submit a written request and medical documentation from their physician either two weeks before the start of the leave or as soon as circumstances allow.

 

The hospital uses a third-party administrator called FMLASource to handle both FMLA and non-FMLA leave requests. King had experience dealing with the third-party administrator as she received both FMLA and non-FMLA leave on several occasions in 2015 and 2016. The hospital has an attendance policy and allows for discipline of employees for excessive absenteeism after three different occasions in a year.

 

Over the years, her immediate supervisor gave King several written and verbal warning for attendance issues but those warnings were occasionally withdrawn because the absences were approved under a medical leave policy.

 

On April 28, 2017, King reported for her 12 hour shift but did not complete the shift because about eight hours into the workday, she had an asthma attack leaving her unable to breathe. Over the next five weeks, King continued to suffer from severe asthma related symptoms. At the peak of that flareup, her symptoms landed her in the emergency room of the hospital seeking treatment. King could not work throughout this time and called in sick for her next 14 shifts. Throughout, she followed hospital protocols and either called her immediate supervisor or the house supervisor at least two hours before her shift and reported that she could not work because of the asthma flareup. Even though King missed 14 days of work, her immediate supervisor did not remember having to cover any of her shifts nor did he recall her absence causing any problems.

 

At some point between April 28 and May 15, 2017, her physician said that she was not able to return to work until a better treatment plan was developed. She then notified FMLASource consistent with hospital policies of the need for more leave. FMLASource said that she did not have any hours of FMLA leave left and did not even consider the collective bargaining agreement leave. She also informed her immediate supervisor of the problem with the leave and what she believed was FMLASource erroneous calculation.

 

While King was trying to sort out her leave hours, the hospital terminated her employment. On June 5, three days after her termination, King reached out to FMLASource again to see if they had updated their hours and apply for leave. Upon further investigation, she did not have FMLA leave but she did have leave available under the collective bargaining agreement. FMLASource retroactively approved part of King’s leave request. Despite retroactively approving periods of non-FMLA leave, nothing about that decision affected her termination on June 2.

 

II

King Was a Qualified Employee

 

  1. A qualified person with a disability is one who can safely and substantially perform the essential functions of the job with or without reasonable accommodations.
  2. A job function is essential if removing the function fundamentally alters the job.
  3. Reasonable accommodations include any reasonable adjustment made to a job and/or the work environment and can include job restructuring and modified and part-time work schedules.
  4. While attendance is an essential function of many jobs, medical leave is a reasonable accommodation to enable that person to meet attendance requirements at a definite later point in time.
  5. Plain language of the ADA defines a qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of the job. The purpose of the ADA’s reasonable accommodation requirement is to require employers to change the way things are customarily done to enable employees with disabilities to work.
  6. Leave as a reasonable accommodation is consistent with that that the ADA’s purpose because it enables the employee to return to work following the period of leave requested as an accommodation. That is, medical leave enables the employee to perform the essential function of attendance at a later time.
  7. While regularly attending work on site is essential to most jobs, that doesn’t automatically apply where medical leave enables the employee to return to work and perform the essential job duties. Approved medical leave may be a reasonable accommodation and the inability to work while on such leave does not mean that the individual is automatically unqualified.
  8. In figuring out whether medical leave is reasonable, a court considers: 1) the amount of leave sought; 2) whether the requested leave generally complies with the employer’s leave policies; and 3) the nature of the employee’s prognosis, treatment, and likelihood of recovery.
  9. There is no bright line rule with respect to defining a maximum duration of leave that can constitute a reasonable accommodation, though requests for indefinite leave are likely unreasonable. According to the hospital’s own policies, King only requested five weeks of leave, which was not an unreasonable amount of leave according to the policies.
  10. Retroactively granting emergency leave can be a reasonable accommodation.
  11. FMLASource own errors caused some of King’s failure to give advanced notice. The third-party administrator miscalculated her hours and violated its own policies by refusing to consider her eligibility for both FMLA and non-FMLA leave when she first sought leave. King cannot be faulted for the lengthy application process when the hospital, through its agent, caused the delays.
  12. By granting King’s leave request, even if only partially, the hospital admitted that retroactive non-FMLA leave was a reasonable accommodation.

 

III

Defendant Knew or Should Have Known of Plaintiff’s Disability

 

  1. An employer has notice of the employee’s disability when the employee tells the employer that she is disabled.
  2. An employee need not use the word “disabled,” but the employer must know enough information about the employee’s condition to conclude that she is disabled. Relevant information could include, among other things, a diagnosis, treatment plan, apparent severe symptoms, and physician imposed work restrictions.
  3. An employee does not have to use magic words or explicitly used the word “disability,” to put her employer on notice of her condition.
  4. King raised sufficient factual disputes whether the hospital knew that her condition substantially impaired her ability to perform the job’s essential functions. King repeatedly telling her immediate supervisor that she literally could not breathe and could not get off the couch without being out of breath and wheezing and that the asthma was debilitating is certainly sufficient notice of a disability.

 

IV

Plaintiff Adequately Requested an Accommodation

 

  1. Plaintiffs have flexibility in how they request an accommodation.
  2. An employee need not explicitly used the word, “accommodation.”
  3. Medical documentation is not required, and a plaintiff’s own requests, whether written or oral, can be a sufficient request for an accommodation.
  4. Once an employee requests an accommodation, the employer has to engage in the interactive process.
  5. The employer must participate in good faith and conduct an individualized inquiry into possible accommodations as part of their interactive process obligations.
  6. Beginning on May 19, King started calling in and telling the on-call supervisor, whoever that might be, she was trying to get a leave but she hadn’t gotten it yet so she was reporting off again for the next day. A jury could reasonably find that King was requesting an accommodation by telling her supervisor that she wanted medical leave to handle her asthma flare up. By May 19, multiple people within hospital leadership knew that King was seeking medical leave to deal with harassment flareups.
  7. Her dealings with FMLASource also make clear that medical leave as the reasonable accommodation was being sought.

 

V

The Hospital Failed to Carry out Its Interactive Process Obligations

 

  1. The record indicates that FMLASource violated the hospital’s own policies when it did not consider King’s eligibility for non-FMLA leave. Instead, they told King that she was ineligible for FMLA leave and refused to allow her to actually make a request for non-FMLA leave.
  2. The hospital unreasonably stalled King’s request because of FMLASource’s errors. Although the hospital and FMLASource caused the error in the hourly calculation, they did nothing to fix it even after being approached by King that it needed fixing. It took several weeks for the hours to be updated, and when it was no one told King. Ultimately, the hospital put the burden on King to fix its own mistake. So, a jury could reasonably find that the hospital obstructed King’s attempt to apply for leave and thereby failed to participate in the interactive process in good faith.
  3. Failing to assist an employee in seeking accommodations may suggest bad faith.
  4. The hospital prematurely halted the interactive process by terminating King while her leave request was still outstanding.
  5. An employer may not stymie the interactive process by preemptively terminating the employee before an accommodation can be considered a recommended.
  6. If an employer terminates an employee before fully considering the request for an accommodation, the employer may need to reconsider the decision to terminate the employee.
  7. King’s immediate supervisor terminated her for failing to timely seek leave even though he knew that she was trying to do just that.
  8. Even though the hospital ultimately approved King’s request for leave, it never gave her the benefits of an approved leave, which would have included reinstatement.
  9. Employers cannot avoid ADA liability by rubberstamping a medical leave after terminating the employee.

 

VI

Undue hardship Has Not Been Shown

 

  1. When an employer believes that granting medical leave causes an undue hardship, courts look first to the employer’s leave policies.
  2. If the employer’s policy provide for the kind of leave plaintiff seeks, courts will presume that granting the plaintiff’s request is not an undue hardship.
  3. King’s request fell within the hospital’s policies. It also fell below the prolonged leaves that the Sixth Circuit has found unduly burdensome.
  4. The hospital allowed its employees to seek emergency medical leave without advanced notice and even had policies in place for handling retroactively requests.
  5. Accommodating sudden flareups does not mean an undue hardship exists merely because handling those situations requires more flexibility.
  6. The hospital did not have any significant staffing disruptions and her immediate supervisor did not remember having to pick up any of King’s missed shifts.
  7. King’s absences did not amount to excessive absenteeism under the hospital’s disciplinary policies as they amounted to only a single occasion not warranting any disciplinary action.
  8. The hospital has not shown that keeping King’s job open while she applied for leave would have caused it an undue hardship. That is, keeping a job open long enough to allow the employee to apply for leave does not constitute an undue hardship.

 

VII

 

Thoughts/Takeaways

 

  1. It isn’t my usual practice to blog on a case that is 10 months old. However, there are so many good things in this decision with respect to understanding how the ADA processes work in title I of the ADA that I simply couldn’t resist.
  2. A real nice explanation by the court as to when a job function is essential, i.e. when removing that function fundamentally alters the job.
  3. Medical leave is a reasonable accommodation even in the face of attendance policies.
  4. A nice explanation from the court as to when medical leave is considered reasonable. That is: 1) look to the amount of leave sought; 2) the employer’s leave policies; and 3) the employee’s prognosis, treatment, and likelihood of recovery.
  5. Courts can vary with respect to how much leave becomes unreasonable, so be sure to check your jurisdiction on that.
  6. Retroactive leave can be a reasonable accommodation.
  7. Magic words are not required when seeking a reasonable accommodation. That magic words not being required applies to both the disability portion of the request and to the accommodation portion of the request.
  8. When requesting an accommodation, medical documentation is not required to make that request.
  9. Employers need to be aware that as part of the interactive process they should not seek excessive documentation to confirm the situation. See this blog entry.
  10. We discussed the do’s and don’ts of the interactive process here.
  11. Unreasonable delay in granting a reasonable accommodation is actionable. See this blog entry.
  12. Employers need to allow the accommodation process to complete its course before terminating an employee.
  13. Leave policies need to be in order if you’re the employer.
  14. Undue hardship is an affirmative defense, and the burden is on the employer.
  15. I was a bit confused by the language of the court talking about whether a condition substantially impairs the person’s ability to perform the job’s essential functions. It seems like the court is getting ADA definitions mixed up. Whether a person is qualified depends on whether they can do the essential functions of the job with or without reasonable accommodations. It is a separate question whether the person has a disability, which points actual disability is a physical or mental impairment that substantially limits a major life activity. The other questions in this case were whether the employer was on notice of a disability and whether the plaintiff has sufficiently informed the employer of a request for a reasonable accommodation for their disability so that they could do the job’s essential functions with or without reasonable accommodations.
  16. Some of the language the court uses, leads to the question of whether an interference claim may not have been in order in this case. As I said before, plaintiff attorneys really should use interference claims more often than they do.
  17. Also interesting, is the court’s language that a qualified person with a disability is one who can safely and substantially perform the essential functions of the job with or without reasonable accommodations. That is not exactly how it works. With respect to qualified under the ADA, the question is whether the person can do the essential functions of the job with or without reasonable accommodations. It is true that a person is not qualified if they are a direct threat to self or others with respect to title I of the ADA. Direct threat, as we have discussed numerous times such as here, is a term of art and is a high standard to meet. However, none of this is the same as safely performing the essential functions of the job.

Can a single person cause a split among the US Court of Appeals all by herself? The answer in the case of Debra Laufer is absolutely. Today’s blog entry explores the published decision, here, from the Fourth Circuit on February 15, 2023 holding that Laufer has standing to pursue her case against a hotel that she believed was not in compliance with the hotel reservation rule. She is undoubtedly headed to the United States Supreme Court because of the Circuit Court split. The facts are really straightforward. Laufer is a tester with no intention of returning to the hotel but with an intention of returning to the website to see if the hotel reservation rule, 28 C.F.R. §36.302(e), is complied with. The question is whether she has standing to pursue such a claim in that set of circumstances. As usual, blog entry is divided into categories and they are: 1) court’s reasoning that Laufer does have standing to proceed; 2) court’s distinguishing of contrary decisions; and 3) and thoughts/takeaways.

 

I

Court’s Reasoning That Laufer Has Standing to Proceed

 

  1. In order to possess article III standing, a plaintiff must suffer an injury in fact-an invasion of a legally protected interest that is: 1) concrete and particularized; 2) actual or imminent, which also requires a causal connection between the injury and the conduct complained of; 3) likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision; and where injunctive relief is concerned 4) plaintiff must show a real or immediate threat of being wronged again.
  2. The Fifth, Tenth, and Second Circuits have all held that either Laufer or another identically situated plaintiff did not have standing because they did not sufficiently allege a proven intention or need to actually book rooms at the defendant’s hotels.
  3. The 11th Circuit held that Laufer had standing to sue based on her allegation of stigmatic injury. That particular decision, which we discussed here, generated three concurring opinions, including one stating that Laufer also has standing premised on alleged informational injury.
  4. The First Circuit, which we discussed here, also ruled in favor Laufer based on her allegation of an informational injury alone. In both the First and 11th Circuit cases, Laufer admitted that she had no intention or need to book rooms at the hotels, but the court did not see that issue as an impediment to standing.
  5. Informational injury is sufficient for standing under article III under a line of Supreme Court cases starting with Havens Realty Corporation v. Coleman, here, and two others.
  6. In Havens, the Supreme Court described testers as individuals with or without an intent to rent or purchase a home or apartment posing as renters or purchasers for the purpose of collecting evidence of unlawful steering practices. The Supreme Court found that the Fair Housing Act’s discriminatory representation provision made it unlawful for an individual or firm to represent to any person because of race, color, religion, sex, or national origin that a dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. That is, Congress had conferred on all persons a legal right to truthful information about available housing.
  7. Havens held the discriminatory representation provision to be the type of enactment under which actual or threatened injury required by article III can exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.
  8. Havens said that it simply didn’t matter that the tester may have approached the real estate agent fully expecting that he would receive false information and without any intention of buying or renting a home. That person could still suffer an injury within the meaning of the discriminatory representation provision.
  9. In a separate case, the Supreme Court held that just because other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure under the Federal advisory committee act does not lessen the plaintiff’s asserted injury. In another case, the Supreme Court held that a plaintiff suffers an injury in fact when they failed to obtain information that must be publicly disclosed pursuant to a statute. In both of these cases, the plaintiff identified uses for the information sought.
  10. Laufer alleged that she failed to obtain information that must be publicly disclosed pursuant to a statute.
  11. It doesn’t matter that Laufer is a tester because a tester didn’t matter to the Havens Court.
  12. The hotel reservation regulation is designed to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs. Nothing in that hotel reservation regulation or elsewhere in the ADA expressly requires an intention to book a hotel room to prove a discriminatory failure to provide accessibility information. That is, nothing says that the information only needs to be provided to the individual where that individual actually wants to make a reservation.
  13. If a black tester has standing in Havens because of a right to get truthful information under the statute, then Havens also mean that Laufer has standing because she was denied information she has a legal entitlement to.
  14. Even though Laufer’s alleged informational injury may be widely shared, it is also concrete and particularized to her.
  15. The location of the informational injury is not the hotel itself, but rather the hotel reservation website. Since she intends to continually return to the website to check for compliance, she has sufficiently alleged an intent to return.

 

II

Court’s Distinguishing of Contrary Opinions

 

  1. The Second Circuit interpreted TransUnion, which we discussed here, to hold that the type of informational injury alleged-the failure to obtain information that must be publicly disclosed pursuant to a statute-what not sufficiently concrete for article III standing to sue unless the plaintiff had a personal use for the information that was unlawfully withheld.
  2. The Second Circuit’s interpretation only works if Trans Union overruled Havens and the other two cases. That is a conclusion that doesn’t hold up: 1) Trans Union can be reconciled with the earlier precedents because TransUnion distinguished the informational injuries and those precedents from the purported informational injury before TransUnion, which was the receipt of required information in a different format. Only after distinguishing the earlier precedents did TransUnion discuss the need for downstream consequences and adverse effects.
  3. Supreme Court decisions remain binding precedent until the Supreme Court sees fit to reconsider them regardless of whether subsequent cases have cast grave doubts about their continuing vitality.
  4. No statement or even a suggestion exist in TransUnion that the Supreme Court was reconsidering the earlier precedents. Instead, the earlier precedents were distinguished without questioning their validity.
  5. The Supreme Court has subsequently cited to Havens after TransUnion and described Havens favorably when referencing that Havens held that a tester plaintiff posing as a renter for purposes of housing discrimination litigation suffered an injury under article III.
  6. The Fifth Circuit did not offer a sound basis for distinguishing Havens. Here, Laufer alleges that the accessibility information missing from the hotel reservation website has relevance to her because the hotel reservation regulation requires providing to her and other individuals with disabilities that information regardless of whether she needed that information for some other purpose.
  7. The 10th Circuit disregards the plain holding of Havens and its line of decisions. Those precedents reflect that the failure to obtain information may be because of a misrepresentation or because of a wholesale refusal to provide it. Racial or other discriminatory animus was not an element of the statutory violations there and such lack of animus did not deprive the plaintiffs of informational injury per article III.
  8. The Havens line of cases are clear that a plaintiff need not show a use for the information being sought in order to establish an injury in fact.
  9. The First Circuit got it right when it said that no other courts holding otherwise have convincingly explained why Havens doesn’t illuminate the path to the decision. Judge Jordan of the 11th Circuit put it that he had yet to see any good answer to the question as to why Havens is different persuasively. Further he said that Havens was still on the books and the 11th Circuit was bound to apply it.
  10. The credit union line of cases have no applicability here because this is not a situation where membership is restricted to certain people and Laufer falls outside that membership category. The District Court was not free to follow the credit union line of cases when applicable Supreme Court decision by way of the Havens line of cases existed. The Havens line of decisions has direct application and therefore controls the situation.

 

III

Thoughts/Takeaways

 

  1. This case is undoubtedly headed to the Supreme Court as a Circuit Court split exist even with respect to the same plaintiff.
  2. The Havens line of cases is based upon specific statutory references in the Fair Housing Act. The hotel reservation regulation is a final regulatory provision and not a statute. That distinction might matter as there are a whole bunch of Justices on the Supreme Court that are not a fan of Chevron deference. One wonders if this might not be a case where the Supreme Court uses it as a vehicle to re-examine Chevron’s validity.
  3. The Fair Housing Act also contains statutory provisions clearly suggesting emotional injuries are in play but that is not the case with the ADA (see 42 U.S.C. §12101 for example). With respect to title III of the ADA, it only allows for attorney fees and injunctive relief and not for damages of any kind. The Fourth Circuit did not deal with the question of stigmatic injury in its opinion but other courts have dealt with that. Where that question arises, one wonders whether the statutory differences in language with respect to emotional harms between the Fair Housing Act and the ADA might not matter to the Supreme Court. It would seem that when the Supreme Court gets this case or one just like it that it would have to cover both informational injury and stigmatic injury.
  4. We previously discussed TransUnion here. You can make a strong argument from that case that tester standing for article III purposes is dead. Whether tester standing for article II purposes exist with respect to stigmatic injury depends upon whether emotional distress damages are available under title II of the ADA. You can make the argument that such damages are available under title II because the remedies provisions for title II of the ADA, 42 U.S.C. §12133, refers to 29 U.S.C. §794a in total and not by any specific provision within that statute.
  5. TransUnion is clear that a statutory right by itself does not confer article III standing.
  6. In short, the Supreme Court could easily find that tester standing is not a thing under title III of the ADA without overruling Havens.
  7. The ADA does not have a representation statutory provision similar to the Fair Housing Act.
  8. As a deaf person who has tried looking at websites in order to see if the hotel has any hearing accessible rooms, I can tell you that such information is often lacking. I can also tell you that often times when a hotel says on the website that a room is hearing accessible, the actual realities on the ground are otherwise.
  9. It is not a slam dunk at the whether the location of the informational injury is the website of the hotel or the hotel itself. The answer as to the location makes a huge difference in these cases.
  10. I’m not going to even hazard a guess as to what this Supreme Court will do and how they will do it with respect to whether Laufer or a similar plaintiff has article III standing. I can tell you that courts are pushing back hard against serial plaintiffs in website accessibility litigation, particularly in California. So, one wonders if that is not going to be in the background when the Supreme Court looks at this case.

Today’s blog entry is Short v. City of Rochester, which can be found here. In this case, a young black man with mental illness was killed by the police. His family sues for violation of the ADA, the Rehabilitation Act, and under §1983. The City of Rochester moved to dismiss all claims. For the reasons discussed below, the court was having none of it and denied the motion to dismiss.

As usual, the blog entry is divided into categories, and they are: Facts; Court’s Reasoning That the ADA and Rehabilitation Act Claims Can Go Forward; Court’s Reasoning That the §1983 Claim Can Go Forward; Court’s Reasoning That the State Law Claims Can Go Forward; and Thoughts/Takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Facts (taken directly from the opinion)

 

Jones was “a young Black man with mental illness.” (Id. at ¶ 1). He had been diagnosed with post-traumatic stress disorder, anxiety, and borderline personality disorder, and his mother “also believes he exhibited signs of schizophrenia.” (Id. at ¶ 29).

At approximately 4:00 p.m. on March 9, 2021, Jones was observed walking around the Town of Gates, just outside the City, without any shoes. (Id. at ¶ 35). A security guard at a residential building, seeing that Jones was visibly distressed, called the police. (Id.). Gates police brought Jones to a homeless shelter on Hobart Street in the City. (Id. at ¶ 36). Jones was provided with shoes and granted entry. (Id.). He spent the rest of that afternoon and most of the evening at the Hobart Street shelter. (Id.).

Jones began experiencing acute mental distress and voluntarily left the Hobart Street shelter around midnight on March 10, 2021. (Id. at ¶ 37). By 2:00 a.m., he had arrived at the Open Door Mission (the “Mission”), a shelter located at 210 West Main Street in the City. (Id. at ¶ 38). The Mission is a not-for-profit organization that provides emergency food and services to the City’s homeless community. (Id.). Many of the individuals whom the Mission serves suffer from mental illness, and the RPD is aware of this fact. (Id. at ¶¶ 38-39).

When Jones arrived at the Mission, he was greeted by employee Allen Woodruff (“Woodruff”). (Id. at ¶ 40). Woodruff opened the door and Jones walked inside to the kitchen, where he grabbed “a bucket of ordinary kitchen knives used for food preparation at the shelter[.]” (Id.). Jones then left, without encountering any other guests or attempting to harm anyone. (Id.). Woodruff called the police and reported that Jones had taken knives from the Mission. (Id.).

Several nearby RPD officers, “including Officers Drake, Audrey Jackson, Sir Glynn, and Jared Carello,” were dispatched to the scene and arrived shortly before 3:00 a.m. (Id. at ¶ 42). Officer Drake located Jones, who was in severe mental distress, at approximately 3:03 a.m. (Id. at ¶ 44). Officer Drake reported to dispatch that Jones was at the intersection of Cascade Drive and Industrial Street and was “actively cutting himself.” (Id. at ¶ 44). At this time, no civilians other than Jones were on the street, and Officer Drake was aware of that fact. (Id. at ¶ 45).

The responding RPD officers lacked the appropriate equipment to engage with Jones in light of his mental state. (Id. at ¶ 46). “Acknowledging this, a fellow officer said to Officer Drake, `just get in your car, Drake, and let’s back off.'” (Id.). However, Officer Drake, flanked by Officers Glynn and Jackson, surrounded Jones and shone bright lights in his eyes while pointing their guns at him. (Id.).

Jones was in clear distress and experiencing a severe mental health episode. (Id. at ¶ 47). Jones stated that he was dangerous and begged the officers to shoot him, telling them that if they did not kill him, he would have to kill them “for Jesus.” (Id.). Officers Drake, Glynn, and Jackson shouted commands at Jones, including telling him to drop the knife he had in his hand, which he was using to cut himself. (Id. at ¶ 49). Jones did not acknowledge their requests, but instead began to walk towards Officer Drake. (Id.). As Jones continued walking towards Officer Drake, who was on the sidewalk at the time, Officer Drake fired five fatal shots, striking Jones once in the chest, twice in the abdomen, once in the groin, and once in the arm. (Id. at ¶ 50). Jones was transported to the University of Rochester Medical Center, where he was pronounced dead by 4:30 a.m. (Id. at ¶ 54).

II

Court’s Reasoning That the ADA and Rehabilitation Act Claims Can Go Forward

  1. In order to prove a violation of title II of the ADA or §504 of the Rehabilitation Act, a plaintiff has to show: 1) he is a qualified individual with a disability; 2) he was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by a public entity; and 3) such exclusion or discrimination was due to his disability.
  2. Courts have generally found that title II of the ADA applies to the interaction between law enforcement and persons with disabilities, but the reasonableness of the accommodation required must be assessed in light of the totality of the circumstances of the particular case.
  3. Plaintiffs alleged that the person killed was: 1) in visible mental distress; 2) was actively engaging in self harm; 3) was begging the responding officers to shoot him; and 4) had come from a place known to the Rochester Police Department as a place serving individuals with mental illness. Therefore, a reasonable inference exists that the responding officers were aware of the person ultimately killed as having a mental disability.
  4. Plaintiffs identified several proposed reasonable accommodations that may have prevented the person from being killed, including: 1) waiting to engage with him; 2) equipping the responding officers with nonlethal weapons; 3) using alternative means to remove the knife from his possession; and 4) utilizing the City’s Person in Crisis Team.
  5. Whether defendant’s claim that it was unreasonable to suggest that the police should have remained in the vehicle and attempted to block the street because of danger to individuals, is a factual dispute not amenable to resolution on a motion to dismiss.
  6. Whether the use of force was objectively reasonable is not the point. The ADA and the Rehabilitation Act claims address action taken and decisions made before a shot was ever fired. To phrase it another way, if he was not reasonably accommodated that conclusion is not undermined by a holding that the police officer was ultimately justified in using deadly force.
  7. Case law does not address a standard for asserting a viable disability discrimination claim with respect to the fourth amendment.
  8. Numerous courts within the Second Circuit have concluded that the ADA requires police departments to make reasonable accommodations for disabled suspects. For example, it cited to one case holding that the only reasonable interpretation of title II is that law enforcement officers acting in an investigative or custodial capacity are performing services, programs, or activities within the scope of title II. Whether a person with the disability succeeds in proving discrimination depends upon whether the accommodations were reasonable under the circumstances. See also this blog entry.
  9. The qualified immunity argument of the defendant simply doesn’t work because no individual defendants are present in this case. Qualified immunity is only available to individuals sued in their individual capacity. Whether qualified immunity exists for an individual is irrelevant to the liability of the municipality.

III

Court’s Reasoning That the §1983 Claim Can Go Forward

  1. The complaint contained numerous factual allegations regarding alleged policies and practices by the Rochester Police Department using unconstitutional force against people who are black and people with mental illnesses. Those factual allegations are sufficient to survive a motion to dismiss and defendant has not articulated otherwise.

 

IV

Court’s Reasoning That the State Law Claims Can Go Forward

  1. New York law allows for municipalities to be held vicariously liable for the wrongdoing of its employees even if the employees themselves enjoy immunity.
  2. Cases cited by the defendant involving negligence do not apply to the context of intentional torts, which is what is involved here. That is, New York law makes clear that municipalities may be held vicariously liable for tortious conduct by their police officers.

 

V

Thoughts/Takeaways

  1. We discussed previously how courts have found that title II of the ADA applies to the interaction between law enforcement and persons with disabilities, such as here. It also makes absolute sense to me to say that the reasonableness of the accommodation needs to be considered in light of the totality of the circumstances of each individual case.
  2. We have frequently talked about how magic words are not required to initiate the interactive process, such as here. In this case, we see that a situation can in essence serve as magic words.
  3. You are beginning to see several cases talking about how an interactive process is required with respect to title II even if the court does not explicitly say it quite like that.
  4. Always a good idea for a plaintiff to make clear that several proposed reasonable accommodations were suggested by him or her or they.
  5. You are seeing lots of police forces beginning to use social workers and mental health professionals to respond either on their own and/or with the police to individuals in obvious mental distress.
  6. Excessive force applies to the force used while the ADA and the Rehabilitation Act applies to what happened before that force is used.
  7. Qualified immunity only applies to individual defendants and not to their employers.
  8. You want to check your jurisdiction to see whether your state law allows for municipality to be held vicariously liable for the wrongdoing of its employees even if the employees themselves enjoy qualified immunity.
  9. You also want to check your state law to see how it deals with vicarious liability for intentional torts of their employees.
  10. Another question is whether police officers are being appropriately trained on excessive force, especially with the ADA and its amendments being around. A separate question is whether police departments are being trained on the rights of people with disabilities in general. We discussed the excessive force issue here. We discussed the question of the police departments not being aware of disability rights and what that might mean here.
  11. You wonder about the Rochester’s Police Department sensitivity to disabilities in general. I have read before that the City of Rochester has more deaf/Deaf individuals than just about anywhere else in the United States because of the city being the home for the Rochester Institute of Technology and the National Technical Institute for the Deaf within it.

Today’s blog entry is a case from the Eastern District of New York, Martinez v. Gutsy LLC, here, which makes the case for why standalone websites can be a place of public accommodation providing that site is functioning for one of the purposes laid out in 42 U.S.C. §12181(7).

 

Once again, a person using a screen reader could not access a website. In this case, a company sold probiotic soda through its website. Defendant filed a motion to dismiss, and it is that motion that the case considers. As usual, the blog entry is divided into two categories, and they are court’s reasoning that a Gutsy’s standalone website is a place of public accommodation  and thoughts/takeaways. Of course, the reader is free to focus on either category.

 

I

Court’s Reasoning That Gutsy’s Standalone Website Is a Place of Public Accommodation.

 

  1. The United States Courts of Appeals are split on whether a standalone website is a place of public accommodation under the ADA.
  2. The First Circuit and the Seventh Circuit have found that electronic space can itself be a place of public accommodation.
  3. The Third Circuit, Sixth Circuit, Ninth Circuit, and 11th Circuits have held that places of public accommodation are limited to physical spaces, but that goods and services provided by a public accommodation, including those provided through a website, could conceivably fall within the ADA’s protections if a sufficient nexus exists. The Second Circuit has yet to weigh in.
  4. District courts within the Second Circuit are split on the issue of whether standalone websites are places of public accommodation under the ADA.
  5. The vast majority of courts in the Second Circuit at the District Court level have taken the position that a standalone website is a place of public accommodation under the ADA independent of any nexus to a physical space.
  6. That so many judges have diverged in their interpretation over this question means that the plain language of title III of the ADA is ambiguous as to whether standalone websites are covered entities under title III of the ADA. Accordingly, a court can use cannons and other interpretive tools to understand the statute in question. If after that, the text of the statute is not entirely clear, a court turns to broader statutory context and its history. When using this methodology, the courts are split as well.
  7. The common thread running through the list contained in 42 U.S.C. §12181(7)(E), (F) are threads of common function, rather than one defined by physical presence. In other words, the statutory focus of §12181(7) is on the entity’s function, such as serving food, creating space for the public to gather, offering entertainment, providing education, offering banking or transportation services, etc. §7(E) is a list of entities engaged in commerce, while §7(F) must be one engaged in the provision of services. Therefore, the ADA provides a guiding limiting principle for courts to use, namely a function-based analysis in applying the ADA’s antidiscrimination requirements online.
  8. Courts assessing ADA public accommodation discrimination claims need to first assess whether the entity with an Internet presence has a function like one on the non-exhaustive list of public accommodations in §12181(7).
  9. Place of public accommodation is a term of art common to remedial civil rights statutes. In such statutes definitions have varied wildly, which serves to demonstrate how the term changes in order to deal with the harms such statutes are intended to remedy.
  10. The phrase “place of public accommodation,” should be read within its context and related history. When reading it that way, a court cannot rule out that the definition sensibly includes electronic space as well as physical spaces.
  11. The change in word choice from public accommodation to facilities when intending to discuss a physical space, further bolsters the interpretation of §12181 as concerned with the functions of the various entities rather than their physical spaces.
  12. In March 2020, the near entirety of everyday American life moved online: grocery shopping moved entirely online just about; kids attended school online; white-collar workers were working remotely; and families went to the movies by streaming in their living room, etc. In short, the dramatic extent to which the Internet has changed what it means to participate in American society came front and center.
  13. As vaccinations have become widespread and pandemic restrictions have loosened across the country, some Americans have returned to in person movie theaters, physical shopping centers, and lengthy commutes. However, many others have not done so.
  14. If it was not already clear before 2020, it is clear today that an enormous share of activities of daily life now happen online.
  15. Commerce is now transacted online as often as not: artisans sell on Etsy; Amazon has largely replaced the in-person convenience store; brick-and-mortar public facing locations can be and appended to core online business and not the other way around, and the Internet is replete with how to guides for creating your own E store and navigating the broader e-commerce landscape.
  16. As an ever greater proportion of the activities of everyday life and commercial transactions take place online, a reading of the statute limiting its effect to enter the transacting commerce in person becomes one that render the statute increasingly meaningless.
  17. A core maximum statutory interpretation, the presumption against absurdity, means that a court should never describe an absurd meeting to Congress. That is, a court must always presume congressional rationality in its drafting. As such, that also favors an interpretation of the ADA that includes standalone commercial websites within its coverage.
  18. Per PGA Tour v. Martin, which we discussed here, the ADA must be broadly construed to effectuate its purpose of eliminating discrimination against individuals with disabilities.
  19. Legislative history of the ADA also weighs in favor of a dynamic interpretation of the statute accounting for changes in technology over time. In fact, the House committee report published in the lead up to the bill’s passage specifically specified that the committee intended that the types of accommodation and services provided to individuals with disabilities under all titles of the ADA should keep pace with the rapidly changing technology of the times.
  20. While no federal agency has promulgated regulations clearly defining public accommodations for purposes of the ADA in relation to the Internet, the DOJ has issued a guidance in that area. That guidance is entitled to deference per Supreme Court decisions because it is informed by DOJ’s specialized experience and consistent with the DOJ’s position in its recent cases and settlements.
  21. DOJ has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.
  22. While not controlling, DOJ’s understanding of a public accommodation is any business open to the public and its specific position that the ADA’s requirements apply in the Internet context, further weighs in favor of interpreting title III to include standalone commercial website as places of public accommodations.
  23. A nexus need not be found for a standalone website to be a place of public accommodation under title III of the ADA. Instead, the key is to focus on whether the websites operate in one or more of the functional categories that forth by the statute.

 

II

Thoughts/Takeaways

 

  1. I read lots of these kinds of decisions. I am always mystified that South Dakota v. Wayfair, which we discussed here, never gets mentioned. I just don’t understand it. In fact, not mentioning it may even be legal malpractice because it is relevant United States Supreme Court authority very much suggesting that a standalone website can be a place of public accommodation.
  2. Undoubtedly, the issue of whether standalone Internet sites are places of public accommodation is headed to the United States Supreme Court eventually.
  3. This case does an excellent job of laying out the reasons why the ADA can be interpreted to include standalone websites within title III of the ADA providing those websites are serving a function within one of the categories listed in 42 U.S.C. §12181(7). As such, this case falls within the line of cases, such as here, saying that the Internet must be meaningful accessible to people with disabilities if what is going on, i.e. the function, falls within one of the categories listed in §12181(7).
  4. The list of entities in §12181(7) is not exclusive even if the categories are.
  5. Interesting how the court talks about the use of place of public accommodation v. facility and how that means place of public accommodations can include electronic space.
  6. Can’t argue with the proposition that online drives everything nowadays. Also, remote work isn’t going away either. If online websites do not have to be meaningfully accessible to persons with disabilities despite whether their functions fall within one of the enumerated categories, people with disabilities will certainly be on the outside looking in.
  7. Also interesting is that the opinion does not cite Kisor v. Wilkie, which we discussed here, but does cite the Supreme Court cases coming before that. From reading this decision, the court is clearly of the view that the DOJ guidance will pass muster per Kisor.
  8. The 11th Circuit is uncertain on the issue of standalone websites because Winn-Dixie was mooted. We discussed the very difficult to understand and now mooted 11th Circuit decision and Winn-Dixie here.
  9. 42 U.S.C. §12181(7)(E) is a category involving sales or rental establishments. Commerce, the term used by the court, is much broader than what the actual category is.
  10. The case is making its way through trial and undoubtedly will head to the Second Circuit eventually.

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.