Applicant Hearing Testing Upheld

[NOTE: This article, by James S. Jorgensen, mentions a situation where a hearing test may be required of job applicants. We have emphasized certain points in the text.]

The Americans With Disabilities Act is the first federal statute that actually regulates what types of questions may and may not be asked of job applicants.

For example, although it would be foolish to do so, an employer can ask an applicant how old she is. The age-discrimination statutes do not per se prohibit the question; rather they generally prohibit employment decisions being based on age.

Asking unlawful questions or requiring an unlawful examination is the basis for a lawsuit, even if the employer does not discriminate against the applicant.

At the pre-offer stage, the ADA prohibits all disability related questions and medical examinations, even if the questions or examinations are related to the job.

At the second stage (after the applicant is given a conditional job offer), the law allows all disability-related questions and medical examinations, as long as all entering employees in the job category are asked the questions or given the examinations.

Consider these facts. Security officers at federal buildings must take a post-offer, pre-employment examination. This same examination is repeated during the time the officer is employed.

Part of the exam is a hearing test, without the assistance of a hearing aid.

An officer has to be able to hear well enough to tell where in the building a threat is located, and, at all times, needs to hear directions from supervisors.

Since hearing aids might not always be effective and security officers might have to rely upon their own hearing, the applicants - and, later, employees - have to pass the hearing test without using hearing aids.

Can an applicant, who fails the test, challenge the decision not to hire him as a violation of the ADA? The answer is "no." Even though the test was a medical exam, it was administered post-offer, and to all applicants.

The request itself did not violate the ADA. In many instances - and for most jobs - wearing a hearing aid is a reasonable accommodation for an individual who has a hearing impairment. However, the prohibition of a hearing aid in this instance is permitted under the ADA. The requirement was based on a legitimate business reason and was consistent with a business necessity.

Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner and Evans in Valparaiso, Indiana.

SOURCE: James S. Jorgensen, The Times, Munster Indiana, July 4, 2009. Thanks to the Northern Virginia Resource Center and Robert MacPherson. The original article can be viewed at http://www.nwitimes.com/business/columnists/james-jorgensen/article_6b60f709-a438-5425-b9d2-8719e38e16b3.html.