Question:

I am hard of hearing and require the assistance of a hearing aid. After being offered employment at a local company, the human resources person told me that the ability to hear well was required for the position for which I was hired. When I responded that I wear a hearing aid because I am hard of hearing, I was asked questions about my hearing condition and whether I thought I could perform the job. I do not consider myself disabled and hear very well with my hearing aid. Are they allowed to ask me about my hearing condition? Can they withdraw their offer of employment because I am hard of hearing?

Answer:

First, while you may not consider yourself “disabled,” your hearing condition may fall within the definition of a disability under federal or state law. The federal Americans with Disabilities Act (the “ADA”) defines the term “disability” to mean a physical or mental impairment that substantially limits one or more of the major life activities of an individual, a record of such impairment, or being regarded as having such an impairment. The ADA takes into consideration mitigating measures, such as a hearing aid, in determining whether you are “disabled.” You may still be considered disabled under the ADA if a hearing aid doesn’t fully correct your hearing condition, or if the use of the hearing aid itself would impose substantial limitations to a major life activity (i.e., being able to hear). In California, the Fair Employment and Housing Act (the “FEHA”) provides a more protective definition of “disability,” in that a hearing impairment need only be limiting, rather than “substantially limiting,” to a major life activity. Also, the FEHA would not consider your use of a hearing aid in determining whether you fall under the definition of someone who is “disabled.”

With regard to your employer’s questions, a prospective employer cannot ask a potential employee about a medical condition before an offer of employment is made. However, if an employer becomes aware of an applicant’s impairment after an offer of employment has been made, but before the offeree starts working, and reasonably believes that the impairment may affect the offeree’s ability to perform the job’s essential functions (i.e., fundamental job duties) or to perform them safely, the employer can ask the offeree questions to determine: (1) whether the offeree can perform the job’s essential functions with or without a reasonable accommodation, and (2) whether the offeree would pose a significant risk of harm to himself/herself, or to others, which cannot be reduced through reasonable accommodation. Because you indicated to your new employer that you are hard of hearing, the employer is now allowed to ask questions to determine whether you can perform the essential functions of the job for which you have been hired, and whether you can perform them safely.

An employer can withdraw a job offer made to an individual with a disability only if the employer can demonstrate that the offeree is unable to perform the job’s essential functions with or without a reasonable accommodation, or that the offeree would pose a significant risk of harm to himself/herself, or to others, even with a reasonable accommodation. A reasonable accommodation is an adjustment to a job, the work environment, or the way things are usually done, that allows a qualified individual with a disability to complete the application process, perform essential job functions, or enjoy equal access to benefits and privileges of employment. Depending on the circumstances, some examples of reasonable accommodation for a hearing impairment might include a text or captioned telephone, telecommunications devices for the deaf, moving the employee’s work station to a more quiet area, or assistive listening devices. As such, your employer’s ability to withdraw its offer of employment depends on whether you are able to perform the essential functions of the job you were hired for, with or without a reasonable accommodation, and whether you pose a significant risk to yourself or others in the performance of that job, with or without reasonable accommodation.

Note that an employer is not required to provide a reasonable accommodation that would cause the employer “undue hardship,” which is defined as any activity that would result in significant difficulty or expense to the employer. If your ability to perform the essential functions of the job, or to perform the job without presenting a significant risk to yourself or others, is possible only with a reasonable accommodation that would cause an undue hardship to your employer, the employer can legally withdraw its offer of employment.
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