Discrimination in the Workplace Against Individuals with Hearing Loss

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1 Discrimination in the Workplace Against Individuals with Hearing Loss An applicant or employee may believe that his or her employment rights have been violated on the basis of a hearing disability. In 2006, the U.S. Equal Employment Opportunity Commission (EEOC) issued a comprehensive paper entitled Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act. The following set of questions and answers provides additional, more detailed information on pursuing an employment discrimination charge under the Americans with Disability Act (ADA). What should you do first if you believe that you are the victim of discrimination? It is important to talk to your employer to try to resolve the problem. Often an open discussion works to take care of your concerns or needs. If you cannot do this, or if the results of a discussion with your employer are unsuccessful, you may pursue a formal complaint. Where do you file a complaint? The EEOC has the primary responsibility for receiving and investigating employment discrimination charges. The EEOC has 50 field offices in 33 states and the District of Columbia. You may file a charge of discrimination in any one of these field offices. Find the closest EEOC field office on the EEOC web site at State and local agencies called Fair Employment Practice Agencies (FEPAs) also receive and investigate charges under the ADA. A list of FEPAs may be found at A disability based complaint under the ADA may be filed either with the EEOC or a FEPA. Most states also have their own laws regulating discrimination in the workplace. Information about discrimination complaints under state law may be obtained from a FEPA. Is there a deadline for filing charges? There are strict time limits for filing a discrimination complaint under the ADA. If you file a complaint directly with a local EEOC office, it must be submitted within 180 days from the date a discriminatory action occurred. If you file a complaint with a FEPA, you may have 300 days from the date a discriminatory action took place. Each FEPA has its own time limit for filing charges, so it is important to check with the FEPA in your own state.

2 Regardless of where you decide to file an ADA charge, it is best to do it as soon as possible after discrimination has occurred. While a meeting with your employer to try to resolve your concern should always be attempted, the clock starts running from the time of the discriminatory act, not the date of such a meeting. If you miss the deadline, you may lose the right to file a lawsuit. How is a complaint filed? You may file charges of discrimination either orally or in writing. Oral complaints may be made in person by going to an EEOC or FEPA office or over the telephone. Written complaints are submitted by mail. There is no evidence that one method of filing works better than another. What are the contents of a complaint? If you file charges orally, you will be interviewed by an investigator. You should be prepared to provide the following information: your personal contact information; the name, address, and telephone number of your employer; the type of business and approximate size; the basis of discrimination (i.e., disability); the date of the discrimination; details about the discrimination, including any records; information about your disability (hearing loss) and how it affects you; how your employer relied on your record of disability or how your employer regarded you as disabled; and names of witnesses, if any. Also, to prevail under the ADA, you must show that you are otherwise qualified to perform the job in question. You should provide the investigator a resume or other documentation describing your education, work experience, training, and skills, and copies of licenses if applicable. If you file charges in writing by mail, you should provide the same information. After receiving your complaint, the office where you sent it should send you a notification of how it is going to proceed. If you receive nothing after about two weeks, you should check on the status by telephone. A well documented charge is very important to improve the chances that an investigation of your complaint will be thorough and demonstrate the discriminatory conduct. Remember to keep a copy of all the documentation that you provide. Can the EEOC or a FEPA reject a charge? No, they must accept all charges of employment discrimination. However, investigators may discourage cases if they believe that the charges are weak and would be difficult to prove. You

3 have the right to have your complaint investigated regardless of the investigator s opinion of the merits. What is the EEOC s mediation program? Before conducting a formal investigation, the EEOC may select a charge for its mediation program. Under the program, the person filing the complaint and the employer are invited to meet together with a mediator to discuss the issues and try to develop their own solutions. Participation is strictly voluntary on both sides. The mediator has no authority to decide the merits of the discrimination charges. The mediator s job is not to impose a settlement, but to act as a facilitator. What happens during the investigation process? If the complaint is not selected for mediation or mediation is unsuccessful, the EEOC proceeds with an investigation to determine if there is reasonable cause to believe discrimination has occurred. Because most EEOC and FEPA offices have large caseloads and backlogs, it may be many months before an investigator is assigned and an investigation is begun. As an initial step, the investigator notifies your employer of the charge and requests a response with supporting information. The investigation may include requests for additional information from your employer and telephone conversations with you, your employer, attorneys, and witnesses. Because of inadequate time and money, investigations rarely involve on site inspections and inperson interviews. What happens upon conclusion of an investigation? After analyzing the results of an investigation, the EEOC issues a letter with a determination of whether or not there is reasonable cause that discrimination has occurred. If the EEOC finds no reasonable cause, it will send you a right to sue letter. After receiving this letter, you may sue your employer for discrimination under the ADA in Federal court. If the EEOC finds reasonable cause, it will attempt to settle the complaint by obtaining relief for you. Relief may include hiring, reinstatement, promotion, reasonable accommodation, back pay, pay of attorney s fees, and payment of witness fees. Monetary damages may also be awarded in limited circumstances. If the EEOC cannot successfully resolve the claim, the EEOC itself may sue the employer. If the EEOC decides not to sue, it will send you a right to sue letter.

4 For more information about the process, you may go to the EEOC web site at: Are you required to wait for EEOC to complete its investigation before filing a suit? No. You may send a written request at any time to EEOC for a right to sue letter. The EEOC will issue the letter if the EEOC determines that it cannot resolve your complaint within 180 days. The right to sue letter may be issued right away or after 180 days have passed. However, be aware that if the EEOC issues a right to sue letter in response to your request, the EEOC most likely will drop any further action on your charges. What are FEPA procedures regarding investigations? Since FEPAs are under state or local authority, they have their own investigation procedures and policies, although they tend to be similar to those of the EEOC. You will have to obtain this information directly from your FEPA. Do you need an attorney to file a charge? No, you may a charge of discrimination by yourself without hiring an attorney. However, an attorney could be helpful in securing a successful outcome. Of course, if you file a lawsuit to pursue your complaint, it is always best to be represented by an attorney. The EEOC office and the courts often maintain lists of attorneys who handle employment discrimination cases. State and local bar associations also operate lawyer referral services that can offer names of attorneys. You will have to access the particular bar association in your state or locality by searching the web or by telephone to make use of the referral service. Has there been any court decisions involving employment discrimination based upon hearing loss? There are very few reported cases in this area. One notable, fairly recent, case is Rizzo v. Children s World Learning Centers, Inc., 173 F.3d 254 (5th Cir. 1999), aff d, 213 F.3d 209 (5th Cir. 2000). Child s World, a private school and day care provider, allegedly demoted Rizzo, a teacher with a hearing impairment, and user of hearing aids, whose duties included driving students to and from school in a van provided by her employer. The employer removed Rizzo from driving duties due to a mother's complaint that she had been unable to get Rizzo s attention. Child s World invoked a new "safety requirement that any teacher whose responsibilities included van driving be able to discriminate spoken words," a requirement it was undisputed Rizzo, at least to some degree, could not meet, and which the Court of Appeals held "tend[ed] to screen out a class of individuals with hearing disabilities."

5 The court stressed the speculative nature of the employer s judgment that Rizzo s hearing presented a safety hazard. It stated that the employer s doubts about plaintiff s ability to drive a van safely stemmed from the parent s concern, not objective evidence of inability on Rizzo s part. The court refused to defer to Child World s judgment that Rizzo could not perform safely based on speculation as to the threat that could be posed by an employee with a disability who had been doing [her] job safely for years. The appeals court acknowledged the employer s interest in protecting the [valuable human beings] in their care, but noted the absence of any evidence in the record that Rizzo ever had any problems driving the van... of evidence of a previous accident or even a previous near miss... [or]evidence that her disability resulted in her being distracted from her driving duties. The court returned the case for trial.

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