How To Provide Reasonable Accommodations Under the ADA For Individuals With Hearing Impairments

With the recent passage of the Americans With Disabilities Amendment Act (ADAAA), employers are turning their attention to changes in the Act and how those changes might impact their business. Fortunately, resources to help you are readily at hand.

In addition to being an author of the Guide to the ADA Amendments Act, a concise forty-five pages of assistance provided by the Thompson Publishing Group, George has recently done some in-depth research about one of the Act’s key requirements: reasonable accommodation.

Today we begin a series of posts on accommodations — based on my conversations with George about his research — with a look at some situations involving hearing-impaired employees.

But First, Some Reasonable Accommodation Basics

Generally speaking, a “reasonable accommodation” is an accommodation that allows an employee with a disability to perform the essential functions of his or her job without causing an “undue burden” to the employer.

Of course, one person’s “reasonable accommodation” is another’s “unreasonable” request for special treatment and/or “undue burden” — thus, this is a question that has frequently been brought to the courts for resolution.

A basic understanding of court holdings on these issues and a conservative, but pragmatic approach to responding to accommodation requests will go a long way toward protecting a company from expensive litigation.

The ADA requires that, once reasonable accommodation is raised, the employer and employee must engage in an “interactive process” to discuss and consider various possible accommodations. As with collective bargaining, this is not an obligation to agree to anything in particular, but only to conduct good-faith discussions.

However, while a given employee with a disability may not be entitled to a particular accommodation, or any accommodation at all, they can prevail in court if:

The employer engaged in the “interactive process,” but failed to provide an available reasonable accommodation that did not cause undue hardship (not necessarily the one preferred by the employee); or

The employer failed to engage in the “interactive process,” and a reasonable accommodation was available.

What Did You Say? Communication, Hearing Impaired Employees, and the ADA

Employees with different disabilities, of course, require different accommodations to be able to do their jobs. In the case of employees with hearing impairments, particularly those deaf from birth, George found to his surprise that communication barriers go beyond the employees’ inability to hear.

George told me:

In several of the cases I studied, it was pointed out that the language used by many deaf employees, American Sign Language (“ASL”), is quite different than American English. It has its own syntax, so simply providing information in the form of written English notes or documents may be inadequate. The same may even be true of using ASL to spell out English words.

In one case, the court found that the employer may not have provided a reasonable accommodation because it refused to provide an ASL interpreter to help a deaf employee understand complicated training manuals.

Another case centered around a deaf employee’s inability to read beyond a third-grade level and her resulting inability to read and thus accurately record information in her clerk’s position. In that case, the court found for the employer, but this problem again was related to dependence on ASL and further highlighted to me the unique challenges of communicating with employees using it.

Understanding the role of ASL is very important because the ADA specifically recognizes provision of a sign-language interpreter as a possible accommodation. Whether one must be provided in a given situation depends on all the facts and circumstances, including the merits of any claim of undue hardship due to expense.

In addition to completely deaf individuals, a number of the cases George found concerned persons with varying degrees of hearing loss. Accommodations requested by such persons included communications devices such as amplified telephones, other amplification systems, or special telecommunication systems for the deaf.

George said:

The most important thing to take from these examples is the realization that, under the ADA, communication with hearing-impaired and deaf employees is literally a two-way street that the employer must walk at least half way.

It would be a mistake to simply assume such an employee (or applicant) cannot perform certain functions because of the hearing impairment. Instead, there is an obligation to go beyond such stereotyped assumptions and explore possible practical solutions and their cost, remembering that you are dealing with someone who probably has a long track record of adapting and adjusting.

As with any other employee with a disability, the key to preventing lawsuits is to do whatever you reasonably can to understand the individual employee’s impairment and work together with them to find accommodations that work for everyone.

This is how George sums up the cases he studied:

First, these cases show that with a “classic” disability — one that employers could not reasonably argue do not to amount to a disability under the ADA (even before the ADAAA) — the courts’ expectations for participation in the interactive process and reasonable accommodation can be quite high.

Second, in some cases the cost of accommodation is not very high, such as where telephone equipment may be purchased for at most a few hundred dollars or where government agencies offer free assistance. Certainly, in each of these cases the cost of litigation has vastly outweighed the cost of accommodation.

Finally, in my research I have encountered with disturbing frequency employers that responded to accommodation requests with what can only be characterized as ignorant blundering. As we enter a new era under the ADA thanks to passage of the ADAAA, issues of accommodation will be even more front and center, and employers would be well advised to be … well … well-advised on such issues.

Read on for a more detailed discussion of ADA case law on hearing impairment issues

Relevant Decisions: The ADA and Communications with Hearing-Impaired Employees

Young v. Nicholson, 2007 WL 128821 (E.D. Wash. Jan. 12, 2007)

In this case, a deaf employee claimed her employer failed to provide reasonable accommodations to help her transition to a job in a different department. The district court found for the employee, based on two factors:

The employee’s first language was ASL, not American English.

The employer failed to engage in the interactive communication process necessary to accommodate the employee’s needs.

The employee in Young v. Nicholson had some difficulty performing her new job mainly because ASL was her primary language. She had to use some complicated and lengthy training manuals with words she did not know, and she asked for an ASL interpreter to help her understand them. She also asked for a deaf dictionary, and training or assistance in writing letters.

Her requests were all denied. Instead, her supervisor, “who had no training, expertise, or understanding of the needs of deaf employees, would decide that an interpreter was not necessary … or would require that [she] read the manuals first before an interpreter would be provided.”

Ability to Read English as Job Qualification

Initially, the employer challenged whether the employee was a qualified individual with a disability, arguing her problem was not her deafness, but the fact she never learned to read. The court rejected this plausible argument, stating:

This assertion highlights [the employer’s] failure to understand the true nature of [the employee’s] disability. It is true that [she] reads between a second and third grade. Her reading ability, however, is tied directly to her deafness and the fact that ASL is her primary language. . . .

[O]ne of the misconceptions many employers who have never worked with a deaf employee before [have] is that ASL is a form of English. … [T]he average deaf high-school graduate in the United States reads at a fourth-grade level. Although Plaintiff reads English at a third-grade level, she does have difficulty communicating in English. …

This does not mean, however, that Plaintiff could not meet the requirements of [her] position … with reasonable accommodation. On the contrary, Plaintiff presented credible evidence to show that she has the necessary skills to perform these positions, with reasonable accommodations.

Failure to Provide Interpreter

The court then specifically addressed the requested accommodation of an interpreter to read the training manuals to the employee, using a vivid analogy:

[R]equiring [that she] read the manuals before an interpreter would be provided is analogous to telling a person with a disability who uses a wheelchair that there is a bathroom for physically disabled persons available at the top of a set of stairs.

The court in Young v. Nicholson concluded that the employer had failed to engage in the interactive process, and was liable because a reasonable accommodation without undue hardship was possible.

Not all reasonable accommodations are expensive. In the case of deaf and/or hearing-impaired employees, in fact, some accommodations are free. These include TTY services that allow deaf and hearing-impaired people to communicate over the phone, and state programs that offer free services to help employers and their hearing-impaired or deaf employees to work together to find accommodations. Continue reading for descriptions of such programs, and check to see if your state offers them.

A testifying expert explained that the state’s vocational rehabilitation division would have “conduct[ed] an individualized assessment of the situation” and developed a reasonable accommodation plan including:

Intensive interpretation during the “front end” training.

Ongoing and regular interpretation

Communication assistance with terminology in operational manuals and other written materials

Job-related instruction and training

Personalized assistance and supportive management, including extended “on the clock” training to ensure the written materials were fully and adequately translated from English to ASL.

Cost objections paled in the face of evidence the employee was an enrolled vocational rehabilitation client, making her eligible for numerous services and supports to maintain her employment — at no cost to the employer.

Bryant v. Better Bus. Bureau of Greater Md., Inc., 923 F. Supp. 720 (D. Md. 1996)

In this case, involving a hard-of-hearing bookkeeper, the district court denied the employer’s summary judgment motion because the employer failed to demonstrate that the proposed accommodation of a telecommunications device for the deaf (“TTD” or “TTY”) would have caused undue hardship.

Initial Hearing-Impairment Accommodation

During her job interview, the employee said she had a hearing problem and needed to read lips to understand people. The employer supplied a telephone amplification device to aid the employee’s hearing when she needed the phone. At the time, this was sufficient. The device, a “volume-control handset,” amplifies voices and is one possible type of telephone accommodations for partial hearing loss.

New Job, New Hearing-Impairment Accommodation Request

When the employee was transferred to a new position that required she answer a hotline number, she told her supervisor this device was inadequate for her new telephone responsibilities, particularly because she had difficulty hearing addresses and telephone numbers. She requested a text telephone or TTY system.

This request was denied in a memo stating: “Your suggestion to provide … a telecommunications device would fundamentally alter the nature of the services provided … and would impose an undue hardship on the operations of the Bureau.”

The TTY System and Its Cost

This refusal to provide the requested accommodation was the basis for one of the ADA claims in Bryant. The court described the requested accommodation:

Essentially, a TTY system consists of a keyboard and monitor . . . connected to the hearing impaired individual’s telephone. When the hearing impaired individual needs to speak on the phone, a third party operator acts as an intermediary … . The operator relays messages from the other party to the hearing impaired person by typing them onto the screen. The hearing impaired person replies either by typing back and having the operator relay the message orally to the other party or, if she is capable … the hearing impaired individual can speak directly to the other party.

The third party operator can be reached in all fifty states, twenty-four hours a day, seven days a week at no charge to either party. . . . The TTY device proposed by [the employee] would have had a onetime cost of $279.00.

The court rejected the employer’s argument that it was entitled to summary judgment on the basis of undue hardship, citing the following facts:

an employer representative admitted cost was not a factor in denying the accommodation request and choosing to transfer the employee instead.

There was some conflicting testimony of employer representatives as to the extent to which the speed of handling calls was of concern, as opposed to accuracy.

Two employer representatives expressed concern that TTYs and relay systems create a time lag, but the employer did not address whether the impact of such a time lag could be mitigated by delegating some of the employee’s non-essential functions to others.

The employer did not provide evidence of the volume of calls involved.

Defense arguments based on the imagined awkwardness and unfamiliarity of callers with the relay system are “not only inappropriate and patronizing, but offensive,” particularly where there was no evidence of any such awkwardness or unfamiliarity or that if it existed it would negatively impact operations.

On the last point, the court said the employer’s assumption of an adverse impact on operations was “based on little more than preconceived discriminatory stereotypes, which are the targets of the ADA in the first place.”

Addressing the employer’s alternate accommodations of providing a volume-controlled handset and transferring the employee to a file clerk position, the court said the transfer was not reasonable as an accommodation because “accommodation by transfer is to be considered as a last resort. …”

The above are hardly the only cases that turn on communications. In Jones v. Wal-Mart Stores, 2008 WL 2115612 (E.D. Tenn. May 19, 2008), the district court denied the employer’s motion for dismissal or summary judgment in the case of a deaf employee who alleged the employer failed to reasonably accommodate him because it did not provide interpreters, closed-captioning, or other deaf-appropriate accommodations during training programs.

In Allen v. Verizon Pa., Inc., 418 F. Supp. 2d 617 (M.D. Pa. 2005), involving an employee with a long-term hearing impairment who requested the accommodation of a special telephone headset and work not requiring use of the phone, the district court denied the employer’s summary judgment motion, finding factual issues as to whether the employer made a reasonable effort to accommodate.

Safety, Hearing-Impaired Employees, and the ADA

Safety is another issue raised in many hearing-impairment cases. Hearing-impaired employees may miss danger alarms and alerts normally signaled by warning buzzers or bells, and there may be concerns that communications difficulties otherwise make them unsafe in hazardous workplaces. Such concerns certainly may be valid, but possible accommodations must be carefully considered, with decisions not based on assumptions and stereotypes.

Stay tuned for our next post on the ADA and reasonable accommodations, coming soon.

Photo credit: dogbomb via flickr