“Ask Sheila” – Accommodation under the Americans with Disabilities Act (ADA)

Dear Sheila:

The county has a job opening in the courthouse cafeteria for a dishwasher.  One of the applicants is deaf and does not communicate verbally at all. Although we hired a sign language interpreter for the interview, the manager has serious concerns about how we will employ this person on a day-to-day basis. For example, kitchen employees must attend weekly safety meetings, and all of our orientation and health code training is on video. There are also concerns about providing instructions while the employee is working. This is a low-wage job; do we have to incur the expense of accommodation?

Sincerely,

Hear Me Out

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Dear Hear Me Out:

If the applicant is the most qualified but for the hearing impairment, then you will need to hire him and provide accommodation under the Americans with Disabilities  Act (“ADA”).  The  Equal  Opportunity  Employment  Commission (“EEOC”) views most positions as requiring accommodation for hearing impairments when the job does not require direct, face-

to-face customer communication. Recently, the EEOC settled a case against a restaurant chain involving a dishwasher who was deaf, stating that the restaurant should have used closed captioning for training videos and a sign language interpreter for important meetings. Further, the supervisor can use written instructions, texts, emails and notes for daily communications. The employer cannot consider the cost of the accommodations when determining reasonableness, unless they would create an extreme hardship for the employer, a difficult test to meet.

Safety considerations are relevant to whether accommodation is reasonable, but employers should carefully consider how real the risk is, and not base the concern solely on assumptions about the particular disability. Several years ago, a city was found to have violated the ADA when it refused to hire an otherwise qualified deaf applicant to a lifeguard position. The city cited safety concerns in that the lifeguard would not be able to hear a drowning person’s calls of distress, but the applicant was able to present evidence that 1) drowning people are unable to scream or yell, and 2) the lack of other noise distractions makes a deaf lifeguard better able to concentrate visually on the swimmers.

When analyzing whether reasonable accommodation is possible, engage in the interactive process with the disabled person before assuming that it can’t be done. Start with the assumption that accommodation is possible. Find out what the person needs from the employer so that he or she can adequately perform the essential functions of the job. If necessary, review medical recommendations and suggestions from the Job Accommodation Network (www.askjan.org) before making a final determination.

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“Ask Sheila” is prepared by Sheila Gladstone, the Chair of the Firm’s Employment Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.