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New Twist On Old Law: Good News for Those With Hearing Loss

Many older people remember the time when no special accommodations were made for the disabled. As a result, millions of people in this country– through no fault of their own –were unfairly discriminated in the workplace, turned down for jobs solely on the basis of their impairments.

A disabled person’s private life was no picnic either. Lack of adequate services, facilities and access often turned such normally mundane activities as dining out, shopping or traveling into nightmarish experiences.

The disabled still face a myriad of daily challenges and hurdles, but things have improved dramatically in the past two decades, thanks to a landmark legislation that has made great strides forward in determining how persons with physical or mental disabilities – which the World Bank estimates at nearly 20 percent of the U.S. population - should be treated.

A step in the right direction

American Flag

The civil rights movement of the 1960s brought into focus all kinds of prejudices that had been rampant in our society. People were discriminated based on their color, gender, religion, and, of course, physical and mental disabilities.

The 1960s represented the beginning of a new era of social awareness and justice, spawning historic laws such as the Civil Rights Act, and, later the Equal Rights Amendment.

In 1990, the equal rights movement took a significant leap forward with the enactment of the Americans with Disabilities Act (ADA). In a nutshell, this important piece of legislation made it illegal to discriminate against people with physical or mental disabilities. Broad in scope, this directive was aimed not only at employers – those with 15 or more employees were required to comply with the ADA regulations - but also extended to any public entity or place. For example, public buildings were required to provide wheelchair-friendly access ramps, and – of special interest to the hearing impaired – hotels and other public accommodations had to install telecommunication devices for the deaf (TDDs) – at no extra cost to the user.

Another “auxiliary” service mandated by the law for the deaf or hearing impaired when communicating important information (for example, between a doctor or hospital personnel and a hearing disabled patient) is exchanging written notes, typing back and forth on a computer, or providing a qualified sign language interpreter.

Further progress

However, the interpretation of the ADA was not without flaws. For example, on numerous occasions the Supreme Court repeatedly created demanding standards for what conditions could be considered as “disabilities” under the law.

Consequently, people with a wide range of impairments – including, in some cases, hearing loss – had often been disqualified from the ADA coverage.

That had changed last September, when President George W. Bush signed ADA Amendments Act of 2008 (ADAAA) into law. Effective as of January 1 of this year, the amendment gives a broader definition of what a disability is, thus eliminating subjective interpretations and offering greater protection to disabled individuals.

How does this new provision affect folks with a hearing impairment? Read on!

Hearing loss – a disability?

You will probably scoff and cringe at the mere thought that hearing loss is a “disability;” after all, your hearing aid or cochlear implant allows you to lead a normal life and enjoy all its perks.

Nevertheless, under the ADA, hearing loss could be considered as a “disability” if it limited a “major life activity.” If you use what the law refers to as "mitigating devices,” for example hearing aids or cochlear implants (but not sign language or lip reading), these assistive devices would be considered in determining whether you have a disability under the ADA.

Under the ADAAA, however, the rules are clearer and more encompassing, because disability is interpreted as an impairment that “substantially limits a major life activity.”

Therefore, employees with substantial hearing loss will be considered disabled regardless of whether they can improve their hearing with assistive technology. Furthermore, the ADAAA goes into more detail than the ADA in its definition of a “major life activity,” and "major bodily functions." The former include manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The former encompasses, among other functions, the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive system.

Know your rights

If you are substantially hearing impaired, you have a number of rights under the new law. Among them are those pertaining to public accommodations, transportation, education, and communication. While this article focuses on the federal law (i.e. the ADAAA), many states have separate protections for people with disabilities. Go to your state’s website to see what regulations are in effect.

And, apart from the ADAAA, there are several other pieces of legislation that protect the rights of people who are deaf or hard of hearing. These are the Telecommunications Act of 1996, the Individuals with Disabilities Act (IDEA), and Section 508.

It is too early to talk about long-term implications of the ADAAA. One aspect of it, however, is predictable: because proving disability will be easier under the new law than it was under ADA, Congressional committee reports predict that the number of lawsuits filed with the Equal Employment Opportunity Commission will increase.

Most common disabilities cited in discrimination complaints so far? Back, emotional and psychiatric, neurological, arms and legs, heart and cardiovascular, diabetes, substance abuse, vision, cancer, and yes, hearing.

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