For prospective officers applying to the New York City Police Department, the message seems to be that those with a hearing loss severe enough to warrant amplification need not apply.
Two city police officers, Deputy Inspector Daniel Carione, 44, and Sergeant Jim Phillips, 40, filed a complaint with the Equal Employment Opportunity Commission (EEOC), charging that the police department discriminates against individuals with hearing loss after they were reportedly forced to retire for wearing hearing aids.
The policy is clear cut although misguided, according to Brenda Battat, Executive Director of the Hearing Loss Association of America, whose letter to the editor appeared in The New York Times a week after they broke the story (June 27, 2011). “Barring young police officers from using the excellent hearing aids available today and forcing older police officers with hearing aids to retire is discriminating,” Battat wrote.
Battat acknowledged that an employee or applicant should have to demonstrate his qualifications for a job, but the New York City Police Department should allow a person physically, mentally, and psychologically qualified to take the hearing test while wearing a corrective device. If a person cannot pass the hearing test, even with hearing aids, Battat said, that person should be rightly disqualified.
NO CHANGE IN POLICY
According to the Times, the NYPD had only informally allowed officers to wear hearing aids on the job, and in late 2009 began to enforce its ban actively.
Paul J. Browne, New York City's Deputy Commissioner of Public Information, said an officer whose hearing was damaged in the line of duty would have to obtain authorizations from the NYPD Medical Division for consultations and apparatus. He would also “have duty status modified until such time that a conclusive determination was made,” he noted, adding that the officer might ultimately be found not to have a disabling problem, and be directed to cease use of any such devices.
“NYPD surgeons may put someone before the medical board, believing one is disabled, and have the independent board deny the application, and the pension board can reverse the determination of causality,” he wrote in an email to The Hearing Journal. “There has been no change in any application of hearing standards.”
When contacted by HJ, Carione and Phillips declined an interview, indicating that they did not want to jeopardize their pending litigation. In his prior interview with the Times, Carione said he began to lose his hearing on July 4, 1996, when he shot and killed a drunken man who was threatening him with a knife. Another officer fired five shots less than two feet from his ear, he said. His hearing loss did not require aids until more than a decade later, though, in 2008, when he was assigned to an executive-level position in an office where elevated trains rocketed past, 15 feet from his window, every five minutes. Because the incessant noise made it difficult for him to follow multi-source conversations, Carione requested a hearing aid—which was paid for by his NYPD health insurance, as was the audiologist's visit.
Browne told the Times that the department's policy was justified because hearing aids are “incompatible with police work,” and are “vulnerable to mechanical failure, earwax buildup, and any number of things” that might interfere with an officer's ability to respond appropriately to a command. Browne did not respond to several requests for additional comment made by The Hearing Journal, but experts observe that many of the objections that the NYPD raised are based on antiquated information about hearing aid technology. Modern devices such as Carione's and Phillips’ have wax traps that can be removed, provide advance warning signals when batteries are running low, and are often worn so deeply in the ear canal that it would require a devastating, if not fatal, blow to knock them out.
INEQUITIES ON THE JOB
Attorney Colleen M. Meenan filed a discrimination claim on behalf of the two officers this past November. She said she has now requested a right-to-sue letter from the EEOC because it failed to process the claim within 180 days. (See sidebar.) Once she receives the letter, which she says is likely, she will have 90 days to file a suit in federal court, an action she intends to pursue.
The EEOC is charged with “enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex, national origin, age, disability or, genetic information,” according to the commission's website. (www.eeoc.gov.) But James Ryan, an EEOC spokesman, said the agency cannot sue a local government in an Americans with Disabilities Act case.
Citing confidentiality, Ryan declined to address the claim filed by Meenan, but allowed that the agency ordinarily investigates a claim and then makes a finding to determine whether it is justified. The agency tries to resolve cases, sometimes through monetary compensation or job reinstatement, Ryan said, noting that in some instances, the agency will turn the case over to the U.S. Department of Justice.
Meenan, a former New York City police officer herself, said she saw inequities when she was on the job. “[W]e are a product of our own experiences. I have strong feelings for these fine, courageous men and the circumstances that have victimized them.”
Meenan admitted that she had little exposure to those with hearing loss before she accepted this case. But she said she now sees how the issue affects people's lives.
The irony of the NYPD case, Meenan said, is that “the policy construct puts officers and the people they serve at a greater risk than if the policy allowed officers to wear hearing aids.” She pointed out that the department does not test for hearing loss, and only learns of cases when officers come forward. The result is that some officers may be serving on the force with an unaddressed hearing loss, and others who wear hearing aids elect not to wear them for fear that doing so will jeopardize their jobs.
New York State allows its troopers to wear hearing aids, Meenan noted. The U.S. Marshals Service allows hearing aids on the job as do other New York municipalities, she said, “Why not New York City?”
The NYPD's policy may also jeopardize the career aspirations of many military veterans returning from service in Iraq or Afghanistan. According to the Department of Veterans Affairs, as of 2008, nearly 70,000 of the troops who served in the two war zones were collecting disability for tinnitus.
The plight of the two officers puts the real issue in stark relief: the perception that hearing aids are for old people and that those who wear hearing aids are less competent, said Battat. “This is a myth, an unfair stereotype.”
Hearing loss does not indicate a loss in brain power, intelligence, or dexterity, she said, and those with hearing loss should not be penalized in the same way that those with diminished vision who use eyeglasses are not penalized.
“I don't suppose it's any concern of the New York City Police Department that the policy calling for non-use of hearing aids on the job perpetuates the negative stigma that hearing loss and hearing aids convey,” Battat said pointedly. “But to those of us who better understand hearing loss, the reasoning behind the policy makes the department look silly—earwax buildup, dead batteries. It's ridiculous. Eyeglasses can fog up.”
What is a Right to Sue Letter?
If the Equal Employment Opportunity Commission determines that there is no reasonable cause to believe that discrimination has occurred in a filed claim, the applicant will be issued a Dismissal and Notice of Rights letter. This letter grants the right to file a lawsuit in federal court within 90 days from receipt of the letter. The letter will not support the discrimination claim, but it establishes the right to bring a lawsuit to try to prove the claim in court.
Where there is reasonable cause to believe discrimination has occurred and where conciliation efforts have failed, the EEOC has the authority to file a lawsuit in federal court in certain cases, although this outcome is rare. If the commission decides not to litigate, the applicant will receive a Notice of Right to Sue, which outlines the right to file a private lawsuit in federal court within 90 days from receipt of the letter.