The loss of hearing can have significant effects on an individual’s ability to obtain and maintain employment because of stereotypical thinking about an individual’s ability to function with this condition. This stigmatization unlawfully prevents far too many individuals from obtaining and maintaining certain employment, despite being qualified to perform the job functions at issue.
The number of employees adversely affected by this discrimination is monumental based upon the number of individuals who suffer with this condition. In the United States, an estimated 30 million individuals (12.7 percent of Americans ages 12 years or older) have hearing loss according to a report based upon data contained within a National Health and Nutrition Examination Study (NHANES). Globally, hearing loss has been identified as the fifth leading cause of years lived with disability (Global Burden of Disease Study 2013 Collaborators, 2015).
Hearing loss can be present from birth or can have an onset at any age. The causes of hearing loss are often divided into congenital or acquired categories. Congenital causes are those that lead to hearing loss or deafness at birth or soon thereafter, including maternal rubella, syphilis, or certain other infections during pregnancy; low birth weight; lack of oxygen at birth; certain drugs used during pregnancy and severe jaundice in the neonatal period (Morton and Nance, 2006).
Acquired hearing loss may be sudden or gradual in onset and may be caused by meningitis; measles and mumps; otosclerosis (progressive fusion of the ossicles of the middle ear); chronic ear infections; autoimmune or inflammatory disorders; fluid or infection in the ear (otitis media); tympanic membrane (ear drum) thickening or perforations; the use of antibiotics or cancer chemotherapeutic medications; some head injuries or other trauma; long term exposure to excessive noise; cerumen (ear wax) or foreign bodies blocking the ear canal; or aging. (WHO, 2015).
The most common interventions for hearing loss are those that amplify sound to provide sufficient audibility of speech and other sounds, such as hearing aids or cochlear implants.
The National Academy of Sciences, Engineering and Medicine released a report finding that hearing loss is a significant public health concern that is influenced and affected by decisions and actions at multiple levels of society. Loss of hearing may to lead to a reduction in an individual’s quality of life due to communication challenges that can affect interactions with others. Equally debilitating for any individual is that hearing loss can cause loss of employment or loss of employment opportunities because of the stigma attached to individuals who suffer with this condition.
As Katherine Bouton, a noted writer and former editor at the New York Times observed in her book “Shouting Won’t Help Why I – and 50 Million Other Americans – Can’t hear You,” – “[p]eople who lose their hearing are afraid to be open about it because they fear the reaction – the prejudice, fear of seeming old or stupid.” Bouton details her own experience with hearing loss and notes that she suffered a loss of confidence when assigned to a new editor who claimed she was not a team player and not on board with the program. Bouton attributes this unfair assessment of her performance to her hearing loss. Rather than acknowledge her disability and ask for appropriate workplace accommodations, Bouton left her employment with the Times.
In early 2011, Meenan & Associates represented Sergeant Jim Phillips and Deputy Inspector Dan Carione, New York City police officers, who filed a charge of discrimination with the United States Equal Employment Opportunity Commission after they were forced to retire because of work related hearing loss. Both men were in their forties with many years of service ahead of them. The police department maintained a policy which prohibited the use of hearing aids causing the involuntary retirement of both officers, two highly decorated public servants who required the use of these amplification devices to address work related hearing loss. A police department spokesperson, Paul J. Browne, was quoted in a New York Times story about the case as saying that hearing aids were “incompatible with police work because they were vulnerable to mechanical failure, earwax buildup or any number of things.” As these officers challenged the department policy in subsequent litigation in federal court, the police department maintained this defense and further claimed that hearing aids do not restore normal hearing, making an officer with hearing loss unqualified for police service.
In 2015, on the day a jury was to be selected for trial, the City of New York offered to settle the issues raised in the litigation. Both Deputy Inspector Carione and Sergeant Phillips made it clear that they would not agree to settle unless the police department changed its policy. The police department agreed to review its policy leading to the issuance of a new policy in early 2016. The new policy does permit tenured police officers to work with a hearing aid after certain defined testing is performed and evaluated by the Medical Division.
Unfortunately, while the City of New York agreed to a change in the policy prohibiting the use of hearing aids by tenured police officers, it permitted the police department to maintain a policy which prohibited the use of hearing aids by applicants.
Accordingly, the firm recently filed another action to challenge the medical disqualification of a police applicant who wears hearing aids to address a congenital hearing defect. This candidate has been tested with his hearing aids and those test results reveal that he has hearing sufficient to perform the job duties and functions of a police officer. For this reason, it is anticipated that this policy will also be changed. In the not too distant future, and as a result of this latest action, other police applicants will be given the chance to prove they too are qualified, despite hearing loss.
Meenan & Associates has been at the forefront of developing effective legal strategies to address the stigma and adverse treatment of qualified individuals who have been denied employment due to hearing loss. All too often it is assumed that such individuals cannot perform certain jobs, not based upon their actual performance but rather on stereotypical thinking about disabled persons. It is just this type of sentiment that the law is designed to protected against. To be clear, it is unlawful to deny employment to a qualified individual with a disability.
Meenan & Associates brings a wealth of knowledge and experience, as well as an empathetic ear, and provides trustworthy counsel to clients in these situations.