©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 19 5 Focus Area: Hearing Impairment Issues In Recruiting and Hiring The EEOC filed 48 disability-related lawsuits in FY 2023, nearly doubling the 27 ADA cases it filed the previous year. While these filings concerned a broad range of disabilities, one particular type of case stood out: claims concerning employee and applicant hearing impairments. Not coincidentally, the EEOC published guidance in late January 2023 regarding hearing disabilities in the workplace.69 The guidance contains a series of question-and-answer documents addressing how the ADA applies to job applicants and employees with hearing disabilities. In particular, the document explains: when an employee may ask an applicant or employee questions about a hearing condition and how it should treat voluntarily 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. After publishing this guidance, the EEOC filed nine ADA cases on behalf of hearing impaired applicants and employees. The Chicago District led the pack, pressing three of these cases in Illinois, followed by one in each of Florida, Kansas, Maryland, Massachusetts, New York, and Ohio. Many of the cases related to recruiting and hiring fell into one of two categories. In some cases, the EEOC challenged the employers’ assumptions that deaf applicants could not perform jobs safely. For example, one employer faced scrutiny for allegedly rejecting an applicant who sought a job as forklift operator in a warehouse without first engaging in the interactive process, despite the applicant’s prior warehouse experience and forklift driver certification. In another case, an employer allegedly required candidates seeking driver positions to take a hearing test that the EEOC claimed screened out hearing impaired drivers, rather than following alternative criteria approved by the U.S. Department of Transportation to ensure an equivalent level of driver safety. In other cases, the EEOC challenged employers’ alleged failure to provide American Sign Language (ASL) interpreters as an accommodation. In one such case, the EEOC alleged that the employer deemed verbal communication and hearing to be job requirements, and terminated the candidacy of a hearing impaired person as a result. In another, the EEOC alleged that an employer ended an applicant’s candidacy after deciding “it would be a challenge having an inter[preter] on site” if the person were hired.70 These decisions remind employers that it is necessary to engage in the interactive process with applicants and employees, including during the interview process, and that decisions should not be made based on stereotypes. 6 Likely Focus on Vision Impairments in FY 2024 Enforcing laws protecting individuals with visual disabilities will also continue to be a priority for the EEOC in 2024. In July 2023, the EEOC issued its Updated EEOC Resource About the ADA and Individuals with Visual Disabilities at Work.71 This technical assistance document explains how the ADA applies to job applicants and employees with disabilities. This document outlines when, according to the EEOC, an employer may as an applicant or employee questions about their vision, how an employer should treat voluntary disclosure about visual disabilities, and what types of reasonable accommodations those with visual disabilities may need in the workplace. The document also highlights new technologies for reasonable accommodation, and describes how using artificial intelligence and lgorithms to make employment decisions can impact individuals with visual disabilities. Finally, the guidance also addresses how an employer should handle safety concerns about applicants and employees with visual disabilities, and methods to prevent harassment and retaliation. 69 U.S. Equal Employment Opportunity Commission, Hearing Disabilities in the Workplace and the Americans with Disabilities Act (Jan. 24, 2023), https://www.eeoc.gov/laws/guidance/hearing-disabilities-workplace-and-americans-disabilities-act. 70 See U.S. Equal Employment Opportunity Commission v. Tech Mahindra (Americas) Inc., No. 6:23-cv-063967 (W.D.N.Y.). 71 Press Release, U.S. Equal Employment Opportunity Commission, Updated EEOC Resources About the ADA and Individuals with Visual Disabilities at Work (July 26, 2023), https://www.eeoc.gov/newsroom/updated-eeoc-resource-about-ada-and-individuals-visual-disabilitieswork#:~:text=%E2%80%9CProviding%20reasonable%20accommodations%20is%20an,the%20resources%20needed%20to%20succeed.
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