Last week was the 34th anniversary of the signing of the Americans with Disabilities Act (“ADA”), the world’s first comprehensive civil rights law for people with disabilities. It has changed how Americans viewed disabilities, and has greatly expanded acceptance and opportunities for the disabled to participate and contribute to the rich fabric of our society. Nevertheless, there are still many challenges in achieving its full mandate.
Section 12205(a) of the ADA states: “the authority to issue regulations granted to the Equal Employment Opportunity Commission (“EEOC”), the Attorney General, and the Secretary of Transportation includes the authority to issue regulations implementing the definitions of disability (including rules of construction).” Pursuant to that mandate, in January 2023 the EEOC issued technical guidance confirming it “uses ADA statutory terminology for its legal meaning and to refer inclusively to individuals who are deaf or hard of hearing, as well as those who have other hearing conditions, such as tinnitus and sensitivity to noise [hyperacusis]. People with a variety of hearing conditions may have ADA disabilities.”
The EEOC guidance is not a change or amendment to the ADA, it merely provides “clarity to the public regarding existing requirements under the law.” It also underscores that the definition of disability is interpreted broadly, in favor of expansive coverage. It’s not the name of the disability, but whether it is “a physical or mental impairment that substantially limits one or more major life activities.” Hyperacusis and tinnitus always were included under the statutory definition of disability, and this clarification directly addresses false assertions that people with these conditions are not protected under the ADA.
The guidance also confirms hearing disabled individuals are entitled to “reasonable accommodations” under the ADA, provided it doesn’t create an “undue hardship” resulting in “significant difficulty or expense.” The EEOC notes “Accommodations vary depending on the needs of the individual with a disability.” Some individuals “may require only one reasonable accommodation, others may need more than one.” It includes several examples of reasonable accommodations, including providing a “quieter environment with fewer background sounds.”
Providing reasonable accommodations for the hearing disabled not only applies to employees. The ADA is structured with general provisions that apply to the entire Act, including the definition of disability. Then there are specific provisions under Title I (employment), Title II (state and local governments), and Title III (public accommodations, that includes businesses open to the public). The EEOC regulates workplace issues under Title I, while the Department of Justice (“DOJ”) regulates Titles II and III. Although there are many valid circumstances for treating employees and patrons differently under the ADA, when it comes to accommodation requests, employees v. patrons are similar. Although each request is considered separately, the ADA statutory language of “factors to be considered” for employee requests under Title I, section 12111(10)(i-iv), is exactly the same for patron requests under Title III, section 12181(9)(A-D).
Historically the DOJ has followed the EEOC guidance and interpretations when applicable. After the ADA was amended in 2008, the EEOC issued updated regulations. Then “to coordinate rules across agencies and harmonize regulatory requirements” the DOJ updated its regulations and “adopted, where appropriate, regulatory language that is identical to the [EEOC] revisions. This will promote consistency in the application of the ADA and avoid confusion among entities subject to both titles I and II, as well as those subject to both titles I and III.”
Following precedent, the DOJ may well formally adopt the EEOC clarification that tinnitus, hyperacusis and other hearing conditions have always been covered by the ADA regardless of one’s status as employee or patron. Disabled patrons should not be deterred from requesting accommodations, and entities are encouraged to not wait for a formal clarification to ensure ADA compliance, and reduce the risk of ADA related claims.
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