Hearing impairment, deafness and hearing loss can occur at any time in an individual’s life, effect one or both ears, and can range from minimal impairment to complete hearing loss. Hearing loss can be the result of heredity or continued exposure to noises, both occupational and recreational, that damage the inside of the ear. Gradual hearing loss over time as a person ages is common, however, individuals can be born with hearing loss or can suffer and illness or injury that causes hearing loss. Individuals born deaf, or hearing impaired are considered to have congenital hearing loss, which means that it has been present since birth. Alternatively, acquired hearing loss is when a hearing impairment occurs after birth because of illness or injury, including head trauma, ear infections, or childhood diseases, such as mumps, measles or chicken pox. Deafness and hearing loss are considered physical impairments that substantially limits a major life activity, namely hearing, and thereby fall within the definition of “disabled” under the American with Disabilities Act (ADA). Being covered by the ADA means that deaf and hearing impaired individuals are protected against discrimination.
Unfortunately, deaf and hearing impaired individuals experience discrimination in every facet of life. As is common with discrimination, this is driven by ignorance and stereotypes about the deaf and hearing impaired. Employers are not immune to this ignorance, and are sometimes the worst offenders as their discrimination has a direct impact on a person’s life. To begin with, deaf and hearing impaired individuals often experience discrimination in the hiring process. Because of this, it is important for individuals to understand their rights. Employers are prohibited from asking about medical procedures and conditions, use of medication, or treatments an applicant may have undergone. Further, employers cannot require medical examination prior to employment. On the other hand, employers are permitted to ask if an applicant will need accommodations to complete the application, and can conduct non-medical tests to measure the applicant’s ability to perform job related functions. Once an employer has made a job offer, they can require medical examination provided all applicants are treated the same. However, an employer can only withdraw a job offer if post-offer examination show that employee is unable to perform the essential functions of the position.
Once in a position, there is also the potential for discrimination. Employers can discriminate by firing an employee, changing an employee’s responsibilities or position to effectuate a demotion without ever changing the employee’s title, or continually failing to promote an employee. These changes are discriminatory when they are made based on the individual’s disability, rather than merit. In some instances, instead of making these affirmative changes, employers choose to create a hostile work environment in order to push employees out by forcing them to quit, which is considered discriminatory as well.
As discussed above, persons who are deaf or hearing impaired are considered disabled under the ADA and are therefore entitled to protection against discrimination. If you live in the metro New York area, including Queens, Brooklyn, Staten Island, the Bronx, and Manhattan, or on Long Island and have experienced discrimination in the hiring process or the workplace because of your deafness or hearing impairment, you should contact a New York disability attorney.