Can You Hear Me Now? Unilateral Deafness Is Not an ADA Disability

I’ve long argued that 2009’s Americans with Disabilities Act Amendments Act changed the game for how employers defend disability discrimination cases. Because the ADAAA defines “disability” broadly, with the express goal of making it easy for employees to establish the existence of a protected disability, it is now exceedingly difficult for employers to win cases on summary judgment by arguing that an employee is not “disabled.” Here is the prediction and guidance I provided on this issue nearly two years ago:

Employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Because every rule is defined by its exception, I bring you Mengel v. Reading Eagle Co. (E.D. Pa. 3/29/13) [pdf].

Christine Mengel worked as a copy editor and page designer for Reading Eagle. In 2007, she became deaf in one ear following successful surgery to remove a brain tumor. Eighteen months later, Reading Eagle terminated Mengel’s employment as part of reduction in force. She claimed that she was included in the reduction in force because of her disability—deafness in one ear.

The district court disagreed, concluding that Mengel could not proceed on her ADA claim because she was not disabled.

However, Ms. Mengel only provided evidence of hearing loss in one ear rather than bilateral deafness…. Ms. Mengel failed to present evidence that her hearing loss in one ear substantially limited her hearing. She testified that her deafness in her left ear was not a distraction, and she did not mention any specific instances where her hearing loss caused a problem other than that she “didn’t hear some things.”

It is refreshing to see that courts are still examining the merits of a claim of disability, instead of glossing over it and assuming that the ADA protects all medical conditions. This case is significant because it proves the exception—that a subset of diagnosed medical conditions exists that does not qualify as an ADA-protected disability.

The key takeaway for employers, though, is to know that this subset is very small, and act accordingly when presented with an employee suffering from a diagnosed medical condition.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.