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EEOC advisory letter schools employers on accommodating individuals with hearing impairments

November 20th, 2013  |  Pamela Wolf

By Pamela Wolf, J.D.

As the push to hire individuals with disabilities accelerates in both the private and public sectors, employers are likely coming into increasing contact with applicants and employees who have hearing-related disabilities. An EEOC informal advisory letter released on November 7 serves as a timely roadmap for accommodating such individuals, even though it’s not considered a formal opinion of the agency.

Where there is more than one effective accommodation available for a hearing-impaired employee or applicant, an employer is free to choose the easier or less expensive alternative, so long as it is effective for the individual in need of accommodation, according to the letter, dated October 28, 2013, and signed by EEOC Legal Counsel Peggy R. Mastroianni. However, that individual’s preference should get “primary consideration.”

Mastroianni’s letter responds to an inquiry as to whether employees with hearing impairments have a right under the ADA to choose their own communication access service provider for interactions with non-deaf employees and supervisors or when interviewing for promotions.

Accommodations for hearing-impaired individuals. Mastroianni noted that employers covered under Title I of the ADA are required to provide reasonable accommodations for the known physical and mental limitations of otherwise qualified applicants and employees with disabilities unless to do so would pose an undue hardship. She pointed to the following examples of reasonable accommodations necessary to provide effective communication for hearing-impaired employees:
• qualified sign language interpreters for different types of sign language;
• readers, or assistive technology such as Communication Access Realtime Translation (CART transcription);
• captioning of videos and video-streamed presentations; or
• use of video relay services and video remote interpreting services.

Individualized assessment. Like any other accommodation decision, the determination of what accommodation an employer will provide for an employee who is deaf or has a hearing impairment is an individualized one, Mastroianni pointed out. The appropriate accommodation may be dependent on the setting in which communication occurs, the ability of the employee to use certain means of communication, technological advancements that make once-effective accommodations obsolete or ineffective, and other factors.

By way of example, Mastroianni suggested that an individual with a hearing impairment who can lip read in one-on-one discussions about simple matters may still need a sign language interpreter for longer, more complex discussions or for larger meetings. Similarly, while using email, typing on a computer, or exchanging handwritten notes may be an effective accommodation for brief and infrequent communications, it may not work for longer or more complex communications. Although one employee with a hearing impairment may need a sign language interpreter, another employee who does not know or fluently use sign language may need CART or some other accommodation.

Choice of accommodations. What happens when there is more than one potential accommodation? Where “there is more than one effective accommodation, ‘the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation may choose between effective accommodations,” Mastroianni said, pointing to EEOC regulations. “Therefore, if there are two or more effective means of enabling an employee with a hearing impairment to communicate at work, the employer may choose the easier or less expensive accommodation, as long as the accommodation chosen is effective for the individual.”

Don’t forget the interactive process. The EEOC attorney also suggested that using an interactive process with an employee will not only help ensure the initial selection of an effective accommodation, it will also be important for reassessing the situation should the employee request a change in accommodation. For example, where an interpreter is not effective for the individual because the interpreter does not use the same type of sign language as the employee, or cannot sign quickly or accurately enough, the employer should arrange to provide a different interpreter as an effective accommodation. Likewise, where a technological device is too slow or experiences frequent disconnections and thus inhibits communication, the employer should determine whether it needs to be repaired or replaced with a properly functioning or upgraded version, or whether a different accommodation is necessary. However, “if a change in accommodation is sought due to mere personal preference, the employer need not assign a different individual to interpret or provide different technology,” according to Mastroianni.

Information and assistance in identifying options and making accommodation evaluations is available from the Job Accommodation Network.