Illinois agreement is good news for those with hearing loss: Will NYPD take note?

By David H. Kirkwood

Passage of the Americans with Disabilities Act of 1990 has had many benefits. Among the most important is that a great many people with disabilities are now doing jobs that pre-ADA they would have either had to give up as their disability developed or would never have been hired for in the first place.

Today, thanks to the ADA and the reasonable accommodations it requires employers to make, hundreds of thousands of people with disabilities can use their abilities in the workplace. It’s good for them, of course, to have the opportunity to be productive and economically independent. But their ADA-enabled productivity and independence are also beneficial for society as a whole, which would otherwise have been denied their contributions and, in some cases, would have had to provide for their financial support.

The effects of the ADA vary considerably among various types of work. Often, there’s a good reason. For example, many jobs require strength and speed and stamina that people with certain physical disabilities simply lack, regardless of accommodations.

Some of these jobs also involve protecting public safety, such as the military, police, and firefighting. In these professions, employers, usually local, state, or federal government agencies, tend to be especially reluctant to hire candidates with a disability—even one that can be effectively neutralized by technology.

As you may in these occupations, otherwise qualified job applicants are automatically rejected if they can’t pass a hearing screening unaided. I understand that, say, a police officer’s inability to hear well could endanger his or her own safety and that of other officers and civilians. But when applicants can pass the hearing test wearing hearing aids, why should they be disqualified if they are good candidates in every other way?

A SENSIBLE AGREEMENT IN ILLINOIS

In view of how rarely people with treatable hearing loss are eligible for jobs in public safety, I was delighted to read about a legal settlement reached last month in Illinois.

The case involved an Illinois State Police (ISP) policy that prohibited applicants for the cadet corps from wearing hearing aids or other assistive technology during the medical exam. As a result, no matter how well a person heard when aided, he or she could not become a cadet and then a state trooper.

That policy was challenged in a complaint to the U.S. Department of Justice on behalf of applicants for cadet vacancies. The complainants alleged that ISP’s policy violated the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act of 2008.

Siding with the complainants, the Justice Department contended that automatically excluding applicants for cadet job vacancies because they couldn’t hear well without hearing aids was discriminatory. The department also stated that the ISP was unable to demonstrate that being able to hear without hearing aids was essential for a state trooper.

THE PARTIES SETTLE

Rather than go to litigation, the Illinois police and the U.S. Justice Department reached an agreement. Among its terms were that the ISP would:

• § eliminate its policy of automatically excluding applicants for cadet jobs who use assistive devices such as hearing aids to attenuate hearing loss; and
• § implement a hiring policy whereby cadet job applicants who use hearing aids are individually assessed to determine their eligibility for hiring.

NYPD, ARE YOU LISTENING?

It’s good that young men and women in Illinois who have the potential to serve the public in the important job of state trooper will not be excluded simply because they need technology to hear well. The old policy was no more fair or reasonable than preventing people who need eyeglasses from becoming police officers, which also often happens.

But this agreement between the federal and state governments will become much more significant if other jurisdictions—local, state, and federal—pay heed to it. There is one agency, in particular that, I hope will do so.

Seven months ago, I wrote a Hearing View about a similar, but even more egregious example of discrimination in my hometown of New York City. In my post, I deplored what I saw as an unfair, illogical, and very possibly illegal policy of the New York Police Department (NYPD).

The issue involved an NYPD decision that two police officers Daniel Carione and Jim Phillips had to go on disability. The men had many years of experience, yet were still young–under age 45–and wanted to continue serving the people of New York on active duty.  Why couldn’t they? Because they wore hearing aids—both because of hearing losses that, they believed, occurred in the line of duty.

Please note, the men were not forced off active duty because they couldn’t hear well enough to do their job safely and effectively. The NYPD made no effort to find out how well they heard through their hearing aids. In fact, the department does not routinely test officers’ hearing. Thus, unless a policeman wears hearing aids on duty, his job is secure no matter how bad his or her hearing.

Carione and Phillips were put onto disability because the department began implementing a policy (which in the past had been largely ignored) forbidding active police from wearing hearing aids. In response, Carione and Phillips filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging the police with violating the Americans with Disabilities Act in failing to provide a reasonable accommodation to their disability.

MANY IRONIES

This was a case full of ironies. One was that if Carione and Phillips had acted irresponsibly and continued to do their job without using the hearing aids they needed to hear well, they would probably still be on active duty. Of course, going out on patrol with impaired hearing would have increased the risk to them and the people they protect.

Even stranger was that when Carione told the police about his hearing loss the department paid the cost of his going to an audiologist and getting a $3000 hearing aid. Yet, just months later, he was told that using the instrument would jeopardize his job.

As of yesterday (January 17), Colleen Meenan, the lawyer for the two NYPD officers, reported that there had been no ruling in the case. Before the EEOC reaches a decision, it should take note of what happened in Illinois where the Justice Department forced the state police to open its doors to job applicants who can hear well with hearing aids.

Surely New York City should not be permitted to terminate officers who acted responsibly and addressed their hearing loss with hearing aids unless it is shown that their aided hearing is inadequate. Unless that happens, the two men should be eligible for reinstatement on active duty.