Discrimination Against Deaf and Hard of Hearing Employees at Work
Eisenberg & Baum is proud to be a national leader in providing legal services to people who are deaf or hard of hearing. We’ve built a legal team, including a CODA attorney fluent in sign language and a deaf client liaison, who are committed to the legal issues faced by people with hearing loss, including employment discrimination. We know employees who are deaf or hard of hearing can face unique challenges in their workplace, from issues as simple as not being able to fully participate in team meetings to outright harassment. Unfortunately, discrimination against employees with hearing loss is all too common. If you are deaf or hard of hearing, though, you do not have to put up with discrimination in the workplace. Both federal and state laws protect workers from discrimination based on a disability, which can include deafness and hearing loss. In this post, we will discuss the types of discrimination employees who are deaf or hard of hearing can face at work and the protections they have under the law.
Protections Against Deaf Discrimination
To know what constitutes discrimination against deaf employees, you have to look at the laws that prohibit such discrimination. Protections against deaf discrimination can be found at all levels of law, from the federal Americans with Disabilities Act (the ADA) down to various state and local laws like New York State’s Human Rights Law and the New York City Administrative Code. Who is protected and what constitutes discrimination is dependent upon the language of the law. For our purposes, we’ll look specifically at the ADA and how its anti-discrimination provisions apply to workers who are deaf or hard of hearing.
Discrimination claims under the ADA generally have to meet three criteria:
- the employee must have a “disability” as the ADA defines it,
- the employee must have been qualified to perform their essential job functions, and
- the employee must have suffered an adverse employment action because of their disability.
What is a Disability Under the ADA?
A “disability” under the current version of the ADA means a physical or mental impairment that substantially limits a major life activity, a record of such an impairment in the past, or even the perception by an employer that an individual has such an impairment. Hearing certainly qualifies as a “major life activity,” so deafness or significant hearing loss can meet the definition of a disability under the ADA. You’ll also note that having a past record of deafness or hearing loss could qualify as a disability even if your hearing has since been restored. Finally, if your employer perceived that you had substantial limit to your hearing ability, regardless of whether that was actually the case, the employer’s perception can be enough to meet the disability requirement under the ADA.
Ability to Carry Out Essential Job Functions
Another key element of showing you’ve been discriminated against on the basis of a disability is demonstrating that you are qualified to carry out the essential functions of your job. In other words, the law won’t protect your job if you were unqualified to perform the job’s key functions in the first place. In determining whether a person is qualified, though, courts will look at whether a reasonable accommodation by an employer, such as assistive listening devices or a sign language interpreter, would have made a difference. Also, note that the law is only concerned with essential job functions, not additional duties you may have been asked to perform that weren’t necessarily part of your core job.
What Is an Adverse Employment Action Under the ADA?
The final aspect of a discrimination claim under the ADA is showing that your employer took some adverse employment action against you as a result of your deafness. The action can come at any stage of the employment relationship, starting with pre-employment decisions on hiring all the way through to your separation. The types of adverse actions taken by your employer could include the company’s refusing to hire you, passing you over for promotion or a raise, declining a requested job transfer, disciplining you, or firing you based on your deafness or hearing loss.
You might also be subject to harassment in the workplace from co-workers, supervisors, or even customers or contractors. Harassment could come in the form of insults or jokes about your hearing, derogatory emails, even physical confrontations. When the harassment reaches a level that it creates a hostile work environment in which you are no longer able to perform the core functions of your job, the harassment effectively becomes an adverse employment action.
Retaliation Against or Sexual Harassment of Deaf Employees
Employees who are hard of hearing or deaf are not immune to and may in fact be targeted for other forms of discrimination in the workplace, like retaliation or sexual harassment. The ADA protects workers from retaliation by their employer when they report an instance of alleged discrimination. So, for example, if you complain to your employer about harassment you’ve been receiving because you are deaf and your employer in turn decides to fire you for complaining about your co-workers, you will have an additional retaliation claim against your employer that is not dependent on your proving you have a disability under the ADA. Similarly, employees cannot be retaliated against for requesting a special accommodation under the ADA.
Sexual harassment is also a common form of discrimination in the workplace that deaf employees can be subjected to. As we’ve discussed in separate posts, sexual harassment is a form of gender discrimination consisting of unwelcome sexual conduct that either creates a hostile work environment or is used a basis for employment decisions. Sexual harassment can come from anywhere in the workplace, and can be in the form of unwanted jokes, innuendos, pictures or touching. People who commit sexual harassment in the workplace may seek to take advantage of employees who they believe are vulnerable because of their gender, age, position, or in the case of the deaf and hard of hearing, disability. In reality, all employees enjoy the same protections under the law, and no one has to put up with sexual harassment in the workplace.
What Do I Do If I Am Being Discriminated Against Because I am Deaf?
If you’re being discriminated against because you are deaf or hard of hearing, we recommend you contact a lawyer immediately. At Eisenberg & Baum, not only d
o we have experience handling legal issues for people who are deaf and hard of hearing, we provide a deaf-friendly environment so when you work with our team, you can rest assured that there will be no barriers to communication. Our team in the Eisenberg & Baum Law Center for Deaf and Hard of Hearing includes a CODA attorney fluent in sign language and a dedicated deaf liaison. To understand what our team can do for you, contact us for a free initial consultation. You may also directly contact deaf rights attorney Andrew Rozynski or deaf client liaison Sheryl Eisenberg-Michalowski.
The federal laws governing sexual harassment generally apply to employers with 15 or more employees. State and/or local laws may have a stricter standard. All employers subject to the federal laws are required to post a notice that describes the federal anti-discrimination laws, including the prohibition of gender discrimination. The Equal Employment Opportunity Commission (EEOC) has prepared 
Finally, in order to create a hostile work environment, the conduct must be so severe or pervasive that it affects your job. Typically, an employee would need to show a pattern of harassment to meet this requirement, though in some instances a single act can be severe enough on its own to establish a hostile work environment. For example, a single, isolated instance of a co-worker telling an insulting joke may not be either severe or pervasive enough to establish a hostile work environment, but a single instance of a co-worker physically coercing an employee to participate in sexual conduct could be seen as so severe that the conduct, on its own, created a hostile work environment.
In New York, the law does protect some court records from disclosure, but records from employment discrimination cases, including sexual harassment cases, are not among those explicitly protected. In rare instances, courts may seal all or portions of the records from a case if a party is able to show good cause for doing so. However, New York courts will typically balance the party’s interest in keeping the material confidential against the public’s interest in having access to that material. In terms of a discrimination case, it’s possible the court can find a significant public interest in knowing the details of your employer’s discriminatory practices that may outweigh your interest in privacy. If you’re concerned about the details of your claim becoming public in a court case, you should speak with your attorney about your options. Be aware, however, that court proceedings and records typically will be available to the public.
The exception to at-will employment occurs when an employee has either an express or implied employment contract in which the employer provides the employee some assurance of job security. Courts are more likely to recognize and enforce express or written contracts versus implied contracts, which require evidence the employer has promised continued employment through policies or other statements. If you are able to prove your employer fired you in contravention of an express or implied contract, you can pursue a breach of contract claim against your employer.
