TransCen, Inc. – Mid-Atlantic ADA Center
HEARING LOSS IN THE WORKPLACE 
RIGHTS AND OBLIGATIONS
AUGUST 9, 2017

This text is being provided in a realtime format. Communication Access Realtime Translation (CART) or captioning are provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. 
Please note:* Slides 1-8 provide instructions on accessing the webinar and are not included in the archived recording or transcript.

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	    >> BARBARA VANDYKE:  Welcome, everyone, to our latest ADA and focus webinar, Hearing Loss in the Workplace  Rights and Obligations.  I'm Barbara Vandyke.  I'm the outreach coordinator with TransCen and the ADA center.  And I will be the moderator for this session.  We are privileged to be joined by our presenters this afternoon, Lise Hamlin and David Gayle of the Hearing Loss Association of America which is in Bethesda, Maryland.  
Lise joined the HLAA as the national  with the national staff as director of public policy in April of 2008.  She has hearing loss herself and has worked as an advocate for people with hearing loss for some 20 years.  She currently represents HLAA on federal advisory committees, industry advisory groups and consumer coalitions including her current position as the cochair of the FCC disability advisory committee.  She has also taken part in developing, maintaining and presenting training programs on hearing assistive technology and on emergency preparedness.  
Ms. Hamlin fields emails, technology, access to public places and telecommunications access and works directly with them to help overcome those barriers.  
Our other presenter David Gayle has served as an attorney for the national aeronautics and space administration, NASA.  He provides legal assistance and personnel and equal employment opportunity and small business and indemnification and insurance.  Since 2007 he's served as a volunteer to HLAA and assisting and supporting advocacy efforts and advice on disability rights laws in areas such as employment, telecommunications and consumer protection.  
I now would like to turn it over to our speakers and it is all yours, Lise and David.  
   >> LISE HAMLIN:  Thank you, Barbara.  I want to make sure first everyone can see and hear.  If at any point, sometimes people say my voice gets a little low.  So if I'm too soft please send a message in the chat room.  And Barbara will nudge me to raise my voice.  
Welcome.  I am really happy to be here today.  We are talking about hearing loss.  We are talking about obligations and employment issues.  Also I wanted to give you a little background on who we are.  Hearing Loss Association of America has been around since 1979.  And we are a nationwide network that includes local chapters and state organizations.  And we focus on the needs of people who are hardofhearing and deaf.  People who want to use their residual hearing typically.  So we field a lot of calls and regularly get calls or emails regarding employment issues.  For those of you who are unfamiliar I suspect a lot of you know that there are 48 million adults with some kind of hearing loss and that ranges all the way from a very mild hearing loss to severe or significant hearing loss or deafness.  And we know that the possibility of hearing loss increases as you get older.  At age 65 we have one in three who have a hearing loss.  But 60% of the people with hearing loss are either in the workforce or in educational settings.  So these people need to be able to access the kinds of accommodations that would allow them to stay in the workforce or even in school.  
Hearing loss does qualify as a disability within the meaning of the ADA, the Americans with Disabilities Act of 1990.  So again if you have a significant loss and it impacts your ability to hear, that's a disability.  
Now individuals with hearing loss must show that they are substantially limited in the major life activities of hearing  according to the ADA.  People with hearing loss typically communicate using the help of personal technology or visual supports.  Someone like myself have a hearing loss and I use a hearing aid and a cochlear implant.  I also use CART.  I am going to be depending on CART with any verbal information coming through.  We have a sign language interpreter.  Enjoy and communicate.  
Now one of the things that's important to know about looking at workplace issues is that the determination of disability cannot take in to consideration any kind of mitigating measures that the individual uses for their disability.  And in this case we are talking about hearing aids, cochlear implants.  So when you are applying for a job or you have a job, can you do that job with or without your hearing aids or cochlear implant.  That's one of the things that's important to consider  
   >> Lise, can you announce the slide number?  
   >> LISE HAMLIN:  Yes, I just realized that.  I don't typically say the slide number.  So I am at fault.  Here we are at slide 16.  We are looking at the hearing loss and the ADA.  So that's  that was slide 16.  So we are moving on  I'm sorry.  To slide  the slide numbers are slightly different than the ones I have.  This is slide 18.  Some accommodations we are looking at for people with hearing loss, assistive listening devices or systems.  So we have FM system, radiofrequency systems, infrared systems or hearing induction loops are some of the systems that we can use for people with hearing loss who can benefit from them.  Typically those are people who use their hearing aids or cochlear implants.  We have to make sure we have appropriate telephones.  If someone can benefit from an amplified phone that's fine.  If they use a cell phone and they have a hearing aid, you would want it to be hearing aid compatible, HAC.  And also video phones are something that's a way to provide an accommodation for someone with a hearing loss.  Access to telecommunication relay services are also important to many people who have a hearing loss.  A caption phone, a phone that provides the text of the other party, whatever the other party is say something, I have one on my desk.  I have one at home.  Also you can get apps or for your wireless phones.  
You can have an application that allows you to see the captions when you have a mobile call.  And, of course, there is video relay as well that will allow somebody who is using sign language to be able to talk to somebody who does not use sign language.  Communication access realtime translation, the CART that we are using today is another accommodation as well as sign language interpreters.  
Okay.  On to slide 19, now when we receive complaints and we have received a number of complaints here, those usually come up at two points.  Those are the points when the economic stakes are highest, when you are getting hired for a job or the possibility of getting terminated.  So that's when we see people coming in or emailing us or calling us and saying what do we do now.  Some of the complaints involve conditions of employment.  But there are a few situations that include harassment.  And I'm going to let David jump in here for a second.  He is our attorney helping us here and he is going to define harassment for you.  
   >> DAVID GAYLE:  Thank you, Lise.  The law does not prohibit isolated incidents of teasing or offhand comments that are not serious.  Harassment becomes illegal when these  this type of behavior is so frequent or severe that it creates what is defined as a hostile working environment or possibly if it leads to an employee being demoted or fired, for example.  I'll turn back to Lise. 
   >> LISE HAMLIN:  Thank you, David.  Now what we have found in receiving and fielding complaints and concerns from people is that they come in to two buckets.  First of all, sometimes it is a matter of the employers do not understand their legal obligations to accommodate employees.  They just don't know.  Or if they know they are not quite sure what exactly constitutes an accommodation.  So they are unclear and the employees generally are not in a great position to tell their employers hey, you should be doing something.  They aren't always listened to.  So we can step in a case like that possibly or help out.  Also the other situation we found is the employees themselves are not aware of what their legal rights are.  Or they are not aware of what kind of accommodation would actually help them.  So there have been cases when I have talked to people.  And it is just a matter of saying hey, have you tried using an assistive listening device in your situation, have you tried using a caption phone and they haven't thought about it.  And in some cases they don't know about it.  In some cases they didn't think it would be acceptable in the workplace.  Sometimes it is a matter of letting people know what's available falls on the employer side and on the employee side.  
So we are now on slide 21.  The other issue is when hiring or even when you are retaining someone, there have been times when there are job qualification testing that includes testing for hearing loss.  Now this is  this comes up  somebody finds out that all of a sudden either when they walk in the door, oops I have to take a test, how does that work for me.  Or in some cases we have found, and we will talk about this a little bit, is we found that once somebody had a job there was a new requirement or an old requirement that was enforced that said you have to take this test every so often to keep your job.  Now we believe that for some jobs, not every job, there is certainly jobs you don't need to have any kind of hearing acuity level testing but it could be for some jobs such as public safety jobs, firefighters, police, FBI they can say we need for all our applicants and all our employees to have a certain level of hearing acuity and we realize that in some cases necessary.  However, what we don't believe that should happen is that when you are testing for hearing, for your hearing acuity, that you should not be allowed to use those hearing aids.  You should be using your hearing aids or cochlear implants while you are doing testing.  And sometimes we have been told that they don't want to have hearing aids on at all.  And in cases like that they have told us that oh, well, the hearing aids can get dislodged if having a fight or maybe the battery will fail or might cause to have earwax causing a problem or not able to use the mobile phone.  
Finally might not able to detect all environmental sounds, you need to hear what's around.  These  what we are finding is in cases where we looked at in the past is that these were fears.  These were not  we didn't see a list of things that oh, yeah, we have had a whole number of cases where the hearing aids were dislodged or the battery failed and this person failed to do their job.  There was no example they could bring us to.  We believe these are just people being afraid of hiring someone with a hearing loss and using these things as excuses.  So for slide 23 I'm going to turn it over to David and he is going to talk to you a little bit about some specific cases we have seen.  
   >> DAVID GAYLE:  Thank you.  Telling stories or providing case studies is always a good way to demonstrate the principles we are focusing on.  We have three examples that involve federal and local governments because that's what we have been receiving lately.  But the same legal principles will apply to the private sector, although the procedures for handling complaints will be slightly different.  The first example involves a person, Mr. P., who has moderate to severe hearing loss in one ear.  He has unilateral hearing loss, excuse me.  Believing that he was fully qualified for a position as a special agent with the ATF, the Bureau of Alcohol, Tobacco and Firearms and Explosives, he submitted an application.  And he was required to demonstrate a level of hearing acuity for this particular position.  
That is always a threshold question that we ask regarding every complaint.  As Lise mentioned a lot of jobs don't require the  a certain level of hearing acuity in order to perform the essential functions.  So we look at that as the initial question.  In this particular case there was no doubt that agents must have a minimum hearing loss in order to perform their jobs.  They must clearly hear their coemployees as well as environmental sounds.  But interesting enough the written standard for meeting the hearing levels did not specify that they could not be met by the use of hearing aids.  Therefore, Mr. P. who used a hearing aid was not deterred from filing his application.  
Slide 24, Mr. P. contacted us at HLAA and we advised him to notify the ATF of his hearing loss.  To avoid any surprise on their part and at the same time to request that they take in to consideration testing with his hearing aid as well as without and he submitted hearing tests against their standards with his hearing aid.  And they were accepted by the agency.  He was later notified that he was not qualified after he passed the test without his hearing aid  not passed, but he failed the test without his hearing aid.  And no mention was made by the agency of the results of his being tested with his hearing aid.  And he was told that he was otherwise fully qualified for the job.  That was the only reason given for not meeting the standards for employment.  We later learned that ATF had an apparent unwritten policy that prohibited the use of hearing aids by its agents.  
Slide 25, Mr. P. was not a veteran.  And that will be significant a little later in our discussion.  So his only recourse at that point was to request reconsideration of his rejection.  That is following current Office of Personnel Management or OPM regulations.  While waiting for a response which he never received he was invited to retake one component of the three component hearing test.  This one was one that he was required to take unaided and he passed that one.  
Slide 26, following that he was given another notice that his application was rejected because he failed the other two components unaided.  Again the results of being tested with his hearing aid were ignored.  And because he is not a veteran he was required to file a discrimination complaint with the agency according  following EEOC regulations covering discrimination complaints of federal employees.  
Slide 27, as part of this  the federal process his complaint was investigated by the agency and after the investigative report was provided he was given an option to either have the head of the agency issue a final decision on his discrimination complaint or request a hearing before the EEOC prior to getting that decision by the head of the agency.  And that was a much better option in this case than asking for a final decision based upon the investigation.  The investigative file had a lot of missing information in it according to our review.  And that was two and a half years since the filing of his complaint with the agency.  
And he is still waiting for that EEOC hearing because they have such an amazing backlog and they are not being responsive to these types of cases.  That's what it appears to us.  You can see that in cases like this, a person must have tremendous perseverance in order to keep going and trying to get a decision in his or her favor.  We hope that he will eventually prevail.  
28, ATF's refusal to evaluate his hearing with a hearing aid is inconsistent with the requirements of the ADA, the Americans with Disabilities Act, as articulated by the Civil Rights division of the Department of Justice.  
Federal employment is covered by the Rehabilitation Act, not the ADA but regulations in part 1614 make the ADA standards applicable to federal employment.  The Justice Department Civil Rights division indicated it lacks authority to get involved with discrimination complaints in the federal sector.  Their authority under the ADA is limited to state and local governments and it has no specific authority under the Rehabilitation Act.  So even though this case or complaint arose under a DOJ component, they would not get involved in the matter.  
So slide 29.  Charges of discrimination have been filed with the EEOC involving state or local police officers.  So we are looking at that as a model.  The EEOC in looking at these cases determine that refusing to evaluate hearing  testing using a hearing aid violates the ADA.  And the EEOC rejected the argument asserted by these police departments that officers using hearing aids on the job would pose a direct threat.  And they  like I said the EEOC rejected that and I'll talk a little bit more about a direct threat exception in a moment.  
No. 30, regarding these local and state complaints, the Civil Rights division entered in to settlement agreements in which they confirm what the EEOC had found.  These settlement agreements required applicants, and we are talking about applicants here, to be assessed on a casebycase basis, every person must be evaluated.  You cannot screen out, it is illegal to screen out every individual, every applicant who may have a disability or may need a reasonable accommodation like a hearing aid.  And that included there for assessment with their hearing aids to determine their qualifications, including the specific assessment whether the applicants pose a direct threat to the health and safety of themselves and others.  And that means that they would pose a threat even using a hearing aid or other devices for a reasonable accommodation.  
They must be evaluated on that point independently.  And 31 is just like a footnote that the OPM regulations are very old and obsolete.  They were issued in 1989 but they are still in effect.  So we have to look at those when we are  when we are handling complaints in the federal sector.  
Now we move on to the next case example, No. 2.  This involves a young woman, Ms. A. who has mild hearing loss in one ear and she has also unilateral hearing loss.  She had a longtime desire to enter law enforcement.  So she applied for positions as an agent with a few federal agencies that I mentioned.  Again applying the threshold test, these law enforcement agencies have valid requirements for hearing acuity.  33, Ms. A. is a military veteran and has veterans preference eligible status for federal employment.  That's significant.  She has that status because she spent eight years  served eight years in the Army, including experiencing combat deployments in Afghanistan.  She had no problems in carrying out her mission despite her hearing loss.  And in fact, she may have experienced greater  been exposed to greater danger in the military than she would have working as an agent for some of these agencies.  
In fact, rather than limit her assignments in the Army, she was actually given a bone anchor hearing aid.  34.  Her applications were rejected by the DEA and the FBI solely because of her hearing loss.  Finding her otherwise completely qualified and she was still waiting for a determination by the ATF on her application.  
OPM even though they are old the OPM regulations have a requirement that agencies must waive a medical qualification standard such as hearing acuity if the person can demonstrate the ability to do the job with or without a reasonable accommodation.  For example, with the use of hearing aids.  And doing so without being a direct threat.  The agencies to which she applied did not consider a possible waiver.  
35, because of her military service that she had the status of being veteran's preference eligible according to federal law, she could not be disqualified for a position for medical reasons anywhere in the Federal Government until the Office of Personnel Management adjudicates her case.  So she took her rejection by the FBI to OPM and with some information and assistance by our organization OPM evaluated the situation and determined that it could not sustain the FBI's position to disqualify her from employment.  
36, as a result of OPM's involvement she ended up actually receiving an offer for a position as an agent which she accepted.  It is evident how differently this works for Ms. A. than for Mr. P., who did not have the status of being a veteran.  We believe her hiring is a breakthrough, overcoming the policy that we have seen from the FBI to screen out all applicants using hearing aids.  I now turn the mic back to Lise. 
   >> LISE HAMLIN:  So we are going to look at a different case.  We are going to look at a case that had to do with the New York City police department.  Barbara, is my voice coming through okay?  I know that I might speak a little low sometimes.  Is it coming through?  
   >> BARBARA VANDYKE:  Sounds good to me.  
   >> LISE HAMLIN:  Okay.  Great.  So Mr. D. was a New York City police officer starting at about 1989.  Then he had moved up the ranks.  He had quite a high position and in 1996 his partner fired a gun five times from his right ear and he had hearing loss.  Now without accommodation he still moved up the ranks.  He didn't go for a hearing aid.  He didn't do any accommodation.  He made deputy inspector in 2008.  Then he requested and was authorized to obtain a hearing aid for his right ear.  What's interesting to me was that the police union had negotiated having hearing aid coverage in their insurance package.  So he said okay, let me get one.  It is time.  And he did.  This is slide 38.  Well, what happened was the New York police department medical doctor recommended Mr. D. to be involuntarily retired on the basis of disability.  There was no testing, no assessment.  He was just told it was time to retire and encouraged strongly to go ahead and retire.  But he felt this is not the right thing.  He loved working there.  And he didn't want to retire.  And he wanted to fight it.  
So slide 39, now they had  the New York police department had issued a new written policy stating that police officers on duty may not wear hearing aids.  And there was no support for this, no factual basis.  They made this rule.  Mr. D. formally requested a reasonable accommodation, that is, using the hearing aid.  But it was rejected.  And again without any regard to his ability to perform the essential duties of his job.  And now we are on slide 40.  So he was terminated.  But he was a fighter.  He called us and he was really upset and angry and he really wanted to push forward.  He did file suit in district court alleging discrimination under the ADA.  We did provide support.  
David works with us but we do not have a team of staff attorneys.  So we do not file cases ourselves but we did submit an amicus brief, friend of the court, providing data on modern hearing aid technology and showing that the other police departments allow the use of hearing aids.  And the court accepted the brief.  We were very happy about that.  
The first day of the trial the NYPD settled the case.  Understand this is five years later.  Talk about persistence, David talked about persistence before.  This took five years before he got to the first day of trial.  But they settled because even though they had  I mean they have deep pockets.  They could wait long  a long time but they realized I think that they didn't have a case.  So they gave Mr. D. backpay, returned lost benefits, reinstated his employment which is what he wanted.  And they agreed to rescind the policy.  It conforms with DOJ requirements to test the hearing of applicants and employees with and without hearing aids and make individual assessments so you are not excluding a whole group of people.  You are making an assessment, can this person function on the job.  
Okay.  So we are now on 42.  So again this brings back, brings us back, right from the beginning I said that we are talking about two different things; do the employers know what a reasonable accommodation is; can they provide it.  Do they know how to enable people with hearing loss to perform their duties and responsibilities.  We will continue to work with employers who come to us and we have.  There are times when employers come to us and say gee, I really want to keep this employee.  What can I do and that's wonderful.  We love working with employers.  But we will also work with employees when they think that their employers are not doing the right thing.  But we always find sometimes the employees themselves do not know what's going on or what can I do, what can I do to make sure that I keep my job.  And some people I have talked to have never heard of an assistive listening device.  Some people don't know about captioned phones.  And our job is to educate people about what's available and what will work for the people themselves on the job.  
So that's our presentation.  We will take questions now.  And I wanted to put up our contact information, too.  So if you need to find us afterwards you can.  Barbara, should I turn this to you?  
   >> BARBARA VANDYKE:  Sure.  If you do have questions you can type them in to the chat panel or you can send them to adatraining@transcen.org.  It says we recently had a deaf individual attending a truck driving school.  He was not allowed to utilize an interpreter during oral testing by the State Department of Transportation.  He was allowed to use the interpreter during the driving portion of the testing.  Are there any legal precedence addressing this situation?  
   >> LISE HAMLIN:  This is Lise.  I know that the National Association of the Deaf has been working very hard to get deaf drivers out there and involved.  It sounds like to me they should have had an interpreter right from the getgo considering they have allowed for waivers for deaf employees, Department of Transportation now will allow for waivers.  It used to be you had to be able to walk around the truck and hear if the brakes were working.  But you can apply on an individual basis for that waiver.  So my understanding would be that you  that he  she should have been allowed to have that interpreter whenever he needed it.  
   >> DAVID GAYLE:  I concur with Lise's point.  There were regulations issued by the Department of Transportation that excluded individuals with hearing loss, obviously that extends to the deaf, from driving vehicles, large vehicles like trucks.  But that has now been changed to permit assessment of those individuals.  And therefore he should have been, this person should have been able to proceed with whatever accommodation would enable him to be evaluated.  
   >> BARBARA VANDYKE:  Okay.  We have another question.  It says can you tell me what are some of the legal steps a person with a hearing loss should take if they are experiencing job discrimination?  
   >> DAVID GAYLE:  Yes, I will respond to that question.  The first thing that I advise people to do is to work with their employer and try to address the concerns involving their hearing loss that have created this sort of issue or environment and see if it can be worked out.  If the employer is unable, unwilling, or resists trying to solve it in working with the employee, then the employer can proceed to file a discrimination complaint under the law.  And it depends on whether as I said in my little portion of the presentation, depends on whether this is a government sector employee, or a private sector employee which type of procedure is followed in the complaint process.  But that's really what is available.  If you are a private sector then  this is important.  You need to go in to the EEOC with a complaint within 180 days of the act of discrimination, although in some states where there is a state rule prohibiting discrimination on the basis of disability the person has 300 days from the time of discrimination to go to the EEOC and file a complaint.  And individuals can file complaints on their own.  They don't need to have legal counsel at that stage.  We have advised people to go ahead and do that and then work with them as the process evolves.  
   >> LISE HAMLIN:  This is Lise.  I would also add it is good to talk to people, other people about your complaints.  It is good to keep a record.  If you think a particular incident happened, it is hard to remember back it happened this day.  It happened that day.  Keeping a log of what you feel is the problem.  Not only helps you in working with the employer because then the employer if you want to work and he or she is open to it, oh, yeah, maybe you have a point.  But if they are being dismissive and you do feel like you have to file a complaint, then you have written records, a paper trail always helps if you decide to file a complaint or go to court.  
   >> BARBARA VANDYKE:  Okay.  That was great.  Here is another one.  My employer offers the option of both BYOD or an agency purchase flip phone which I cannot use.  I have an iPhone and have a captioning app.  However clients call me during offhours.  I can't tell the difference between their calls and personal calls.  I would prefer to have an agency sponsored phone.  What are my options?  And then they say for clarification, can my employer mandate I use my own phone when they are providing equipment to colleagues who have no hearing loss?  
   >> LISE HAMLIN:  This is Lise.  You know, I'm not sure about this one myself.  It sounds like it would be worth pursuing, getting the advice of an attorney who specializes in this.  If it were me, I would say yes, it is the only way I could communicate is on that iPhone, then that's what I have to use.  And providing something that you can't  everyone else in your  in your workplace can get a flip phone but you can't use it, doesn't  I don't know.  It doesn't seem to me equal access.  But I'm not the attorney.  So and in this case I'm an advocate, not an attorney.  And I always want to say raise the question first.  So I would ask locally if you can find somebody in a disability rights attorney's office to look in to this a little bit and ask for questions about the use of phones in your workplace. 
   >> DAVID GAYLE:  I believe that the employer, it is true that the employer must provide a reasonable accommodation for the disabled person, in this case the individual with a hearing loss.  And if that accommodation involves furnishing a particular type of phone in order to enable the  you or the employee, any employee to perform the essential functions of the job, then I believe you have an argument to make that is mandatory to make a phone available one way or the other.  And they should not require you to have to bring your own phone in to the office in order to meet the job requirements.  
   >> BARBARA VANDYKE:  Okay.  Thank you.  Here is another one.  What is meant by valid requirements for hearing acuity?  
   >> DAVID GAYLE:  The  if there is a  for a job, they may require if it is allowed and essential to perform the job that you can hear at a certain level.  And they test you at various frequencies.  And measure the  your hearing quality, like in terms of dB or decibels.  And the numbers have to be reasonable.  They can't put up a standard so high that individuals can't meet them.  Either unaided or using a hearing aid.  It has to be reasonable in relation to the requirements of the job that is being performed.  
   >> LISE HAMLIN:  This is Lise.  I would add that in certain situations it is a safety issue.  So if you are a firefighter you typically don't go in alone in to a burning building or by yourself.  You go with a team.  And in the building in a burning situation there is usually a lot of smoke.  So you cannot see the other person easily.  It is not like you could use sign language easily.  So that's why they require a certain level of hearing so they can communicate on the team.  Now it doesn't mean that there is no job in that fire department that would be available to somebody who is deaf or hardofhearing, but certainly the job of going in to the building would need that level of hearing acuity.  So it depends on how the job is designed.  It depends on what is needed.  For example, again the other thing that the New York police department did was the guy who was the deputy inspector had gotten to a point where he was working in an office and for those of you who know New York City there are some offices that are right next to the elevated subway.  And when he opened the windows the subway would go by and he couldn't hear a thing.  That was the point that really pushed him over the edge there.  There was no direct threat.  And  office situation, the need for having an acute hearing is not as great as if you are on the beat.  But even on the beat there are certain levels where you can still communicate if you have  if you use your own personal devices such as a hearing device or something of the sort that works for you.  So the question becomes, that's why  we are not saying that every single job.  In fact, we are saying the exact opposite, not every job has to have a certain level of hearing acuity to work at.  But there are some few jobs where that it is justified reason, justified reasoning for saying that you need to have a certain level of hearing to perform the essential tasks of that job.  
   >> BARBARA VANDYKE:  Okay.  Here is a question about technology.  Would you explain how a caption phone works?  Who does the captioning?  Is it automatic or is it a service?  
   >> LISE HAMLIN:  Okay.  The caption phone is a phone that's working through the telecommunications relay services.  What it is is that the person with hearing loss has the phone that has a display on the phone that allows it to display text and to be able to use it as a typical phone you can hear on the phone as well.  That when you connect and typically now through the Internet, you have a phone connection and an Internet connection, you connect to what's called a relay operator.  That operator communication assistant, that operator relay operator, communication assistant will listen to the voice on the other side, the hearing person speak, will revoice in to a computer system like Dragon or one of the other speech recognition systems and because speech recognition needs training, it can't  you can't pick up a phone and get a real text from anybody.  We use this person in the middle who has trained the software and usually it is a she I have to say.  But there is some hes, but usually a she will revoice the person.  And I see it on my caption phone as text.  These phones are available through state programs.  There is usually a qualification testing for state programs.  But you can also get them directly from the providers, three providers.  And then there is one that is an app that you can put on your cell phone and have captioned phone calls through your cell phone.  
   >> BARBARA VANDYKE:  Okay.  Thank you.  Here we have can David, we state again the brief definition of harassment?  
   >> DAVID GAYLE:  Okay.  As I indicated that isolated incidents of teasing or ridiculing an individual probably do not amount to a legally actionable case of harassment.  That type of behavior has to persist.  Considered severe.  Before you can actually proceed with a valid complaint that you are being harassed on the job.  And obtain a legal remedy to get that activity, to get away from that activity.  Or to have that activity stopped so that the individual can perform the job.  When it does persist as I indicated that's called a hostile working environment.  And no person, particularly a disabled person can actually function in a hostile working environment.  And therefore a remedy must be provided in order to avoid that kind of situation.  
   >> LISE HAMLIN:  We had a call in once with somebody  actually it was a niece of a man who was working who was literally harassed for wearing his hearing aid on the job.  Unfortunately when it is the niece, there  she could try to talk to her uncle and try to get him to move on it but he was one of those no, no.  I'm going to man it up and not going to respond to this.  This guy was a boss and making this man's life miserable, but the boss was moved to a different department and that was resolved that way.  But frankly I wish he had taken the case because it was  it was  it just makes me so angry that somebody would harass somebody simply for wearing a hearing aid.  
   >> BARBARA VANDYKE:  Hmmm.  That's interesting.  We have  you shared several cases with concerns about bona fide occupations.  What about accommodations for events in the workplace, meetings that occur during the workday?  
   >> LISE HAMLIN:  So there are other ways that you can make accommodations.  And frankly as technology gets better and better we are going to see more and better provisions.  If you are having a webinar like this, for example, we have CART for that.  That wouldn't have been available even ten years ago.  There are provisions for having conference calls that are accessible, usually by CART but it could be other means.  You could have video relay.  You could have a split screen now.  We are waiting for that.  There is one technology called Fuse where you can have more than one screen and you can have a sign language interpreter as well as either directly or with other people on the call.  So we are not limiting to the  the things that we have mentioned are examples.  And in fact, one of the good things about the ADA is it didn't say it has to be these exact things that said we are looking at whatever technology can help somebody in the workplace, essentially how can I be the best employee I can is the way that I tell people when they call me and say we can do it.  You are trying to tell the employer I can be a better employee if I have this accommodation.  And that's essentially what we are going to see happen. 
   >> DAVID GAYLE:  Let me add quickly to Lise's response and that is discrimination of disabled people can involve almost any benefit of the workplace such as training or attending meetings or other activities along those lines.  So it is not just being subject to termination or trying to get a job.  Any benefit of the workplace, if the employee can  is not permitted or cannot function because of the disability of hearing loss is a valid basis for proceeding with a complaint to the employer and if necessary beyond the employer.
   >> LISE HAMLIN:  And let me just jump in one more time and give a plug for Vocational Rehabilitation Services in the state.  Often if you are not sure about an accommodation you can go to your VR state services and ask what's available or can they help you out.  Because as I said in the beginning, it is really hard for an employee to go to either a coworker or a boss and say this is what I need.  If a third party comes in and says no, she really does or he really does need this accommodation and this is how it will work for you, it gives that employee more credibility I think by having that person in there.  And it really helps out.  So you should think about turning to VR when you can, too.  
   >> BARBARA VANDYKE:  That's a good recommendation.  All right.  Here is an interesting question, which employers are exempt from ADA requirements for reasonable accommodation?  And what happens when you need to deal with an employer who doesn't fall under the ADA?  
   >> DAVID GAYLE:  Let me answer the first part first.  The requirements to provide a reasonable accommodation can only be avoided if the employer can demonstrate that it is an undue burden.  That's the legal definition, a legal term.  And that means that it is either too difficult to do or too expensive to do.  If the employer can't make that case, then the employer must under the law, under the ADA or the Rehabilitation Act make the reasonable accommodation available to the employee who needs it in order to perform the job.  And what was the second  
   >> LISE HAMLIN:  Let me jump in also.  They also have to pass the bar of being 15 employees.  Sorry I took it out of your mouth.  
   >> DAVID GAYLE:  The ADA applies to employers that have at least 15 employees.  So smaller companies are exempt from the statute overall.  However, many states have their own laws prohibiting discrimination in the workplace that includes smaller businesses with many fewer employees.  So if you are working for a company like that and believe you are the victim of disability discrimination, you have to explore state law as well.  
   >> BARBARA VANDYKE:  The second part of the question is what do you do if you are not covered.  
   >> LISE HAMLIN:  In that case you can always negotiate.  Religious entities are exempt.  Religious missions are to reach out, to talk to other people.  I would always assume goodwill first in talking to an employer.  Years ago there was a woman who came in to my office and said I have a brandnew boss and I'm the secretary.  And he yells at me to get me to do something and I can't  I can't tell what he is asking out in the hallway here.  And she said I'm ready to quit my job.  Look, here is a tip sheet.  I'm going to give you my tip sheet.  I was working at what was the league of hardofhearing in New York.  Take some paperwork and talk to him and tell what the problem is.  She talked to him and resolved the problem and he said I get it.  Sometimes you can talk to people.  And there is always somebody you can't talk to.  You have to decide if you can do your job under the circumstances or if it is time to look around because  or again what David said is look for state law.  Sometimes the state law will cover you where the ADA does not.  
   >> BARBARA VANDYKE:  Thank you.  I just want to clarify, under Title I of the ADA religious entities are not exempt.  But let's move on to the next question.  
   >> LISE HAMLIN:  Okay.  Yes, thank you.  Barbara, I misspoke again.  I misspoke.  
   >> BARBARA VANDYKE:  A deaf applicant was offered a job at a large wellknown grocery store and when requesting an interpreter for the orientation the employer stated if the applicant is involved in VR services it is VR's responsibility to provide the interpreter and not the employer.  This was the first time hearing this rule.  VR is willing to provide the interpreter to allow the consumer to continue with the job placement, but what are your suggestions in discussing this with the employer for future deaf applicants?  
   >> LISE HAMLIN:  I'm sorry, Barbara, can you run that by us again?  
   >> BARBARA VANDYKE:  They are wondering if an applicant who is directed to an employer through VR, who is going to provide the interpreter services, VR or the employer?  There was apparently some confusion in this example.  
   >> LISE HAMLIN:  Okay.  So when I have worked for  when I have worked with VR they have often  they have sometimes provided for a limited amount of time to have the interpreter.  But usually there is a handoff at some point.  They don't put live interpreters.  Nor should they.  So it needs to be an understanding on the part of the employers of when they pick up having interpreters, when  this is part of the job.  Now most cases that I have seen also with a deaf employee is they don't need interpreter 24/7.  They need them for central communications on the job.  So usually you could say to the employer this is what we need.  This is what we can do.  But at some point VR or in fact, again when I worked at the league they picked up part of the  what they did was do career training and they picked up interpreters.  Even if it is a private agency at some point it ends and the employer needs to know that right up front.  
   >> BARBARA VANDYKE:  Okay.  Thanks.  If our government employee who works in an EEO department files an EEO complaint against their employer, how neutral is the process when outside EEO contractors are used?  And should they do something different?  I'm not sure this is up your alley but give it a go. 
   >> DAVID GAYLE:  I can respond to that, I believe.  If somebody is a government employee, they obviously have the right to pursue a discrimination complaint no matter in what area, what office they are employed.  And it is possible and I know that it has happened that a person working in the EEO office of an agency has, in fact, pursued a disability discrimination complaint against their supervisor in that same office.  And it would be handled just as it would be for being employed in a government office, a different government office, not that particular one.  
You have to try to work with the boss to resolve it and if that's not possible, go through the EEOC process with an informal complaint to the individual and the agency who handles those complaints.  People who are appointed to manage and handle and work with employees who have discrimination complaints.  I don't see any distinction because the individual employee working in an EEO office.  
   >> BARBARA VANDYKE:  Okay.  Someone is asking for you to talk about the different types of sign language that we have here in the United States, more than ASL.  
   >> LISE HAMLIN:  So is the question just you want to know how many different kinds of sign language interpreting there are?  
   >> BARBARA VANDYKE:  I think they want to know about ASL and then deafblind ASL.  
   >> LISE HAMLIN:  Right.  Well, I can list them.  There is certainly tactile interpreting for people who are deafblind and use that.  There is signed English.  There is pidgin signed English and there is cuedspeech.  There is oral interpreting and, of course, there is foreign language interpreting as well.  You could be a citizen of the United States but still have your primary language could be Spanish sign language or British sign language or Mexican sign language.  So there are a whole range of languages that can  sign languages that can be used.  And it is important  it is important to know that so when you are requesting an accommodation you request exactly what it is you need or the employer must make sure that they provide what is needed.  
   >> BARBARA VANDYKE:  Do you want to talk a little bit since we are talking about interpreters about certified deaf interpreters?  
   >> LISE HAMLIN:  That  this is Lise again.  That's not up my alley.  At the Hearing Loss Association we tend to work with people who use a residual hearing.  I know there are certified deaf interpreters.  People who are deaf themselves and basically my understanding is that they provide interpreters  interpreting particularly in a case where somebody may not use ASL forms that an interpreter is used to but someone who is a deaf interpreter, certified interpreter knows, has been in the community long enough to know certain idioms may not be known by the hearing interpreter.  So that's my understanding.  But again if you want to know more about certified deaf interpreters I would turn to the National Association of the Deaf or registry for interpreters of the deaf.  
   >> BARBARA VANDYKE:  Okay.  Thanks.  Those are two great resources.  This person says that they are attending an event in another state and the event organizer is not providing CART.  Does their employer have a responsibility?  
   >> LISE HAMLIN:  No.  So the question is  so the question becomes in my mind is the employer requiring the employee to go to an event that doesn't have an accommodation.  And even at that point typically the accommodation is provided by the venue.  So if it is a conference that they are required to go to, the employer could make it clear to the  if they are paying for it, they say that my employee needs to be here.  And that it should be provided and the venue should be providing the CART or whatever.  But arrangements like usually need to be made well in advance, particularly if somebody is deciding that they don't know or don't want to provide CART they really need to be pushed a little bit and you need time to do that.  So your employer could probably help you in a situation like that by bringing in we are paying for this kind of attitude.  But you have a right to that whether or not required by employer to go, if it is on your own initiative or not or your employer's initiative.  
   >> DAVID GAYLE:  Let me add a few words to Lise's answer which I totally agree with, as I said before the rules apply to any benefit of employment.  And again if you are required to attend an activity, an event, a class or something that is inside the physical building or locality where you are employed, then the employer has the responsibility to make sure that a reasonable accommodation is provided.  And the employer can work it out any way that may be reasonable with the individual or organization that is leading the meeting or the event or whatever the conference whatever it may be.  So they can arrange between themselves on who is going to pay for it in relation as part of their contractual obligation for having employees participate in these types of activities.  
   >> BARBARA VANDYKE:  Okay.  Very good.  We have a question about the word "qualified" when talking about interpreters or captioners.  Can you address that, what it means to be a qualified interpreter?  
   >> LISE HAMLIN:  Okay.  So we are again outside  with interpreters you are outside my experience.  I could tell you the certified interpreter has to go through testing.  NAD for awhile was doing testing but that, in fact, is up in the air and you need to talk to them.  Qualified interpreters I believe have to provide effective communication, but I don't know beyond that.  In terms of CART, qualified CART providers do have credentialing as well and again it is an effective communication issue.  If there is a provider who is not doing the job in a way that's understandable by the person who needs it, then they are no longer qualified.  Even with credentialing that can happen.  But more likely when an individual is credentialed they have gone through a long process to get there and they are more likely to be both qualified and certified.  
   >> BARBARA VANDYKE:  Okay.  My supervisor assigns a coworker who knows sign language to sign for me during meetings.  But she is not effective.  Can my employer continue to do that?  
   >> DAVID GAYLE:  The requirement is to provide effective communications.  So right there in the example given that is not being met.  And the individual has a right to be accommodated in order to perform the essential functions of the position.  So I would suggest that the employee in this situation go to the employer and explain that having this other employee serve as an interpreter is not effective in order for me to be able to do this type of work that you want me to do and require me to do.  And discuss with the employer different arrangements that could be made.  For example, in this case bringing in an interpreter who would be effective and enable the employee to communicate as necessary to perform the assigned tasks of the job.  
   >> BARBARA VANDYKE:  Okay.  What are the consequences an employer can face for failing to provide effective communication?  
   >> DAVID GAYLE:  Well, the consequences are that could be a complaint of discrimination based upon the disability of hearing loss.  If you are not able to communicate effectively on the job then you can't perform the job.  That puts you in jeopardy to being demoted or terminated.  It can be reassignment to a position that is vacant or soon to be vacant.  Technical things on the  related to the job such as CART or caption telephones or other ways to enable communication to take place so that the employee can perform the duties and responsibilities of the position.  
   >> LISE HAMLIN:  I would add that what it is about is that there are repercussions for not doing the right thing.  The problem that I always found with the ADA they are very dependent on the individual with a disability.  There are no ADA police out there.  Nobody that can say write this guy a ticket or he gets fined for what he has done unless you take them to court.  So that really the responsibility goes back to the individual, the employee to push the position and be as persistent as some of the people we were telling you about.  If you have a case, if the  if you have a bona fide case and can show that there has been discrimination or accommodations are provided as you requested, you can be persistent.  You can push.  But it is a lot.  I have had people tell me once  I have told them that they are unwilling to go that step, particularly if they are just coming in for a job application.  Oh, my God, I'm not going to spend time doing this.  I would rather find another job.  So it is tough.  It is hard on the individual.  But it is not  many employers already know that they can be held responsible for not doing the right thing.  That helps prevent some cases.  Usually with the bigger corporations that they really understand what is going on.  They have their own attorneys who are looking at these issues.  They know what to do but in smaller places between the 15 employees and the hundreds of employees those are the guys who don't necessarily know what they are supposed to do.  And it is harder for some  an individual with a disability to work there.  
   >> BARBARA VANDYKE:  So you have to be a selfadvocate in the business world.  If you have a hearing loss or any other disability you need to advocate for yourself.  
I have another question here.  Go ahead, David.  
   >> DAVID GAYLE:  We need to be selfadvocates.  They are welcome in to HLAA and get assistance on what sort of things they can ask.  
   >> MAYNOR GUILLEN:  David, if you can move closer to the microphone, please.  
   >> DAVID GAYLE:  Not the same who need to advocate and should advocate on their own behalf.  (Off microphone).  
   >> MAYNOR GUILLEN:  David, we are having issues hearing you.  If you can move closer to the microphone again, please.  Okay.  Your connection is breaking up.  We are going to pause the session for a second.  
   >> DAVID GAYLE:  Okay.  
   >> MAYNOR GUILLEN:  David, try again.  
   >> DAVID GAYLE:  I'm glad to try again.  Hopefully the communication is effective this time.  And employees who have concerns about being accommodated in order to perform their job are welcome to come to us, to HLAA and tell us the situation, and we will be able to provide information, advice and assistance to enable them to advocate on their own behalf, perhaps more effectively than they might otherwise be able to.  
   >> LISE HAMLIN:  This is Lise.  And I would add that remember we do not take anybody to court.  We don't have a staff of attorneys to take your case.  But what we do have is access to experiments.  We have access to  we can walk you through the stages and help you along the way.  But if you want to take somebody to court, you need to find an attorney near you.  
   >> BARBARA VANDYKE:  Okay.  We have a question that has to do with Title II.  So a little outside our topic here of employment.  Under Title II we are moving towards captioning of our public meetings.  We can accommodate this for our staff.  However often we have outside presenters who have their own presentations.  Can we require them to provide their presentations so that they can comply with captioning or visual attributes?  
   >> DAVID GAYLE:  Title II covers  of the ADA covers state and local governments I believe.  So it is not evident to me how that question might apply but they are required, the governments at those two levels are required to address the need to accommodate disabled people, including those with hearing loss in order to obtain the benefits offered by the local or state governments.  I'm not sure I can go beyond that simple sort of statement.  Maybe you can.  It sounds  reviewing the question it sounds like maybe it does, in fact, deal with employment.  Not outside of it.  I'm not sure how these presentations are offered and given.  
   >> LISE HAMLIN:  So you are already providing captioning through your own staff and you are asking when outside people come in.  I think you can tell the outside people that they can't present unless they provide the proper accommodations for the staff that you need.  I think that  we have seen that in other situations where you can do it.  It may be somebody who is really special that you want to bring in but either then the employer must provide the accommodation or the presenter and I don't see why you couldn't ask the presenter to create their own captions or have captions if they want to present before you.  
   >> DAVID GAYLE:  Yeah, that goes back again to the  this particular event or activity being part of employment rather than being outside of employment.  So that's a little  the question is a little confusing to us I must say.  
  (Laughter). 
   >> BARBARA VANDYKE:  Yeah.  Me, too.  Do you have any information about tax credits or other incentives small businesses can use to pay for these accommodations?  
   >> LISE HAMLIN:  To the best of my understanding, but there are tax credits that can be used for providing accommodations.  However, in my experience there is very few employers have been  the tax credit isn't enough to be the thing that makes an employer provide accommodations.  It is much more valuable to the employer as having somebody who can work well for them who they want to have as an employee and the accommodation becomes part of who that person is and how they can do the job that needed to be done.  We can get back to you if you want.  You can reach us at the numbers.  And we can find where the tax credit is.  I know the IRS has a code.  And we will get that information to you later if you'd like.  I just don't have it in front of me right now.  
   >> BARBARA VANDYKE:  That information is also available on our website, adainfo.org.  If you put the search term tax incentives in you will find the tax incentives information.  I got a couple more here.  And we are getting close to the bottom of the hour.  I think you might have addressed this a little earlier but resources for finding qualified interpreters or captioners, is there a central place that you can find if you need?  
   >> LISE HAMLIN:  This is Lise again.  I would  when  you can look to local resources.  Sometimes you can connect to the people locally.  If you don't have them for interpreters I would turn to the registry of interpreters for the deaf and for CART there is the National Court Reporters Association.  They also have lists and ways to find a CART provider in your area.  And you can also email me for CART and NAD.  I don't know for sure but you might be able to get interpreters from them.  
   >> BARBARA VANDYKE:  Okay.  Those are some good ideas.  We have people call here asking for resources, too.  And our information specialists can provide that kind of information to refer you to organizations.  
One more question, what type of information should an employer gather in order to provide an appropriate accommodation?  
   >> LISE HAMLIN:  This is Lise.  I think the first thing an employer needs to do is look at it on a casebycase basis.  Everyone with a hearing loss is different.  It would be really easy if we had one size fits all but we don't.  So it really depends on the person's hearing loss.  The employer needs to know what the hearing  what the individual uses as accommodations and how the individual must easily communicate.  What if they are already using something personal.  If they are not, they can go  again they can call us.  They can go to other resources like the ADA center.  They can go and find and look to technical answers as well as  I mean some of the answers are not necessarily technical.  If you are in a room and it is a onetoone conversation and somebody hears very well onetoone except that the lighting situation is really bad, it is easy to.  Make sure that there is no back lighting and make sure that the light is even.  
So there is lots of solutions but I think what the employer has to really look at what are the individual's needs.  How can they best work in the situation and every work situation is different, too.  So you need to look at the environment.  You need to look at the individual.  You need to look at what the job needs to be done.  
   >> MAYNOR GUILLEN:  Barbara, if you are talking, make sure your line is unmuted.  
   >> BARBARA VANDYKE:  Sorry about that.  It says applicant  here is the last question.  Applicant used Typewell for a panel interview process and was offered the position.  She countered that she would accept if we would guarantee that CART would be offered for all client meetings.  There was hesitation to guarantee as Typewell has been successful.  We responded that we could not guarantee it.  And that we would engage in the interactive process and move forward from there.  And may decline for other reasons.  Is there some sort of procedure in this situation?  
   >> LISE HAMLIN:  Well  
   >> BARBARA VANDYKE:  Things like the interactive process.  
   >> LISE HAMLIN:  Well, CART  I'm sorry.  CART is very different from Typewell.  While you may have perceived that the Typewell went well for you, that person may have been struggling.  Because Typewell what it does it is a summary typically.  It isn't word for word the way CART is.  So that person may have been in the interview and struggling and using a lot of the resources, looking visually and trying to figure out.  And they are using lip reading.  They are trying to figure out what's going on.  So the first question in my mind as an employer you say why do you think Typewell is not working for you.  Typewell is less expensive than CART.  And I understand that the employer would want to go with a less expensive answer if it works.  You need to find out why the employee would want to have something more less expensive.  It seemed to work or it is not something that they would just prefer.  And then so at that point I think you'd have to go from there.  If you decide that you agree with them, that makes it easy, but if you don't agree, then I think you are going to have to find a way to resolve it.  
   >> BARBARA VANDYKE:  Okay.  Well, we are almost to the bottom of the hour.  So we will wrap it up today.  If you still have questions, you can contact your regional ADA center or the contact information that was on the screen for David and Lise, the ADA center 800 number is 8009494232.  
We want to thank Lise and David for their time today and sharing all their knowledge and all these great cases.  I hope that you learned a lot.  I know I did.  Reminder that the recording of today's session and a written transcript will be available for viewing and download within a couple of weeks.  And you will be getting an email with those instructions.  You will also receive an email with a link to an online session survey.  So we value your feedback and we would like you to give your input.  
So thank you for joining us.  On our next slide you will see the code for this session for the continuing ed.  Effective communication.  Effective communication.  So you will send that to the ADA training at TransCen email and we will process your certificates.  
Thank you and have a good afternoon. 
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This is being provided in roughdraft format.  Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
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