HR professionals must recognize when it is legally acceptable to ask applicants health-related questions—including whether they have a hearing disability—and if they need job-related accommodations, according to updated guidance from the U.S. Equal Employment Opportunity Commission (EEOC).
The resource guide, published in January, also outlines how the Americans with Disabilities Act (ADA) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions.
“Employers have a legal responsibility to create fair workplaces for all employees and job applicants who need reasonable accommodations,” EEOC Chair Charlotte Burrows said in a statement. “The practical questions and answers and realistic scenarios in this updated document will help educate employers on those responsibilities and employees about their rights.”
The guidance also includes information on:
- How certain pre- and post-job offer disability-related questions can violate the ADA.
- Easy-to-access technologies that can make providing a reasonable accommodation for a hearing disability free or low-cost.
- Employer concerns about safety.
What HR Managers Should Keep in Mind
The ADA does not require applicants to disclose that they have or previously had a hearing disability, unless they will need a reasonable accommodation for the application process, such as a sign language interpreter, the EEOC said.
The agency laid out when companies can ask applicants health-related questions, along with questions about potential accommodations related to the job.
Before making a job offer:
- Employers cannot ask applicants if they have a hearing disorder—even if one seems apparent.
- An employer may ask an applicant about accommodations if it reasonably believes that the applicant needs one.
After making a job offer:
- Employers can ask about the applicant’s health, but they must ask all applicants for that position the same question.
- If the applicant discloses their hearing disorder, companies may ask additional questions about their health—how long their hearing has been affected, what specific hearing limitations the individual experiences, and what reasonable accommodations they may need to perform the job.
- Organizations may ask about an employee’s condition when the employer has observed symptoms, such as difficulty hearing, or when it has received reliable information, such as from a family member or co-worker, suggesting the employee may have a medical condition that is causing performance problems or raising safety concerns.
Companies should also carefully and critically review the essential functions of any position to ensure people with hearing conditions aren’t left out, said Karen Beverly-Ducker, senior director of multicultural practices at the American Speech-Language-Hearing Association.
“For example, is it essential that the individual effectively communicate via the telephone,” she said, “or [can the job be done] via other means, such as e-mail, texts or other hearing assistive technology?”
How Companies Can Avoid Unintended Discrimination
Individuals with hearing disorders can perform successfully on the job, and under the ADA, they should not be denied opportunities because of stereotypical assumptions about those conditions, the resource document noted.
In 2020, the EEOC sued:
- A Subway sandwich shop franchise in Bloomington, Ind., for rejecting a qualified, hard-of-hearing applicant for a sandwich-maker position by citing “a communication concern” due to the applicant’s “hearing and speaking.”
- Dollar Tree Distribution for failing to accommodate or hire a deaf applicant for an entry-level warehouse job in Ridgefield, Wash.
Some applicants with a hearing condition may choose to disclose it in the interview process to dispel myths about it or to ensure that organizations don’t assume it means the person is unable to do the job.
Mustafa Ali Sivisoglu, student success manager for language-learning application Preply in Brookline, Mass., said the main way applicants are discriminated against is by an employer’s “careless planning” of an interview when they’ve been notified of an applicant’s hearing condition.
“Make sure that the applicant knows what to expect on the day, so they have enough warning to let you know about any further adjustments that may be needed,” he said. “If there are group exercises, a written test or even a presentation, these need to be carefully planned to make sure everyone can participate easily in such tasks.”
The EEOC’s updated document also noted that employers can use various accommodations with applicants and employees who have hearing disorders, including:
- Assistive technology, such as automated captioning or telephone amplifiers.
- Assistive listening devices.
- Sign language interpreters.
However, a company does not have to provide an accommodation if doing so would result in an undue hardship.
An organization also is not required to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse job-related conduct violations, such as threatening behavior or destruction of property.
“The takeaway point is you can ask about their abilities to do the job,” Sivisoglu said, but “not about whether hearing loss will mean they can’t, as it doesn’t need to be a barrier to people carrying out work.”