Q We run a fine-dining restaurant in which the ambient atmosphere is an integral part of our business. We host many business lunches and other professional-type meetings because of the quiet and relaxed environment. That environment has changed a little bit lately as the result of our new hostess, Kimberly.
Kimberly is quite the talker. That’s generally not a problem; in fact, many of our clientele enjoy her outgoing nature and friendliness when she seats them at a table. However, the volume of her voice has caused other patrons to complain, indicating that it’s interrupting their lunch and dinner meetings.
I’m now at the point where I need to address the issue, but I’m not sure quite how. It’s not as simple as just telling an employee not to talk so loud. You see, I’ve noticed that Kimberly wears hearing aids, and although the issue has never come up before, I get the impression that her hearing impairment may be what causes her to talk louder than the average person.
I think I have to address the issue because I’ve received enough complaints that I’m concerned about losing our reputation as having a quiet, ambient atmosphere that’s ideal for business meetings. At the same time, I’m concerned that if I approach the issue with Kimberly, she’ll claim I’m discriminating against her based on a disability. She is at will, so can I just avoid all this if I pretend the issue never came up and exercise my right as an employer to terminate her? And if I’m asked why I took the action I did, can’t I just rely on the fact that I had received complaints about her from customers, and that was the reason I terminated her?
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act
A First and foremost, do not terminate Kimberly right now unless you really want to defend an Americans with Disabilities Act (ADA) charge of discrimination. That said, you’re not powerless, and I think you stand a higher risk of a discrimination charge down the road if you don’t address the issue with her.
When an employer has reason to know of a disability that may be interfering with an employee’s ability to do her job, you have the duty to engage in what’s called the “interactive process.” Based on the facts you have presented, I think your duty to engage in the process has been triggered. That means you need to meet with Kimberly and let her know that you have received some complaints about the volume of her voice, and ask her if there is any reason she can’t keep her voice down. If she says there’s no reason, then great — simply document that you had the conversation with her and her agreement to keep her voice down.
If Kimberly indicates to you that her hearing disability is the reason she has to speak as loud as she does, then start exploring with her whether there’s anything that can be done to help her do her job more quietly. It may be as simple as the fact that she has been meaning to get in to her doctor to get a better hearing aid, or it may be that there’s nothing that can be done. At this point, you just don’t know, and simply assuming will . . . well, you know what they say about assuming, right?
If there is nothing Kimberly can do about it, then you have a really difficult decision to make. I believe you have four choices, two of which are pretty risky:
- do nothing other than offer your sincerest apologies to your customers and explain that the reason for Kimberly’s loud voice is that she is hearing-impaired (which should cause any decent human being not to make a big deal out of it);
- attempt to modify her job functions to minimize the effect of her loud voice on your operations;
- offer to transfer her into an open position for which she meets the minimum qualifications and for which her loud voice won’t disrupt operations; or
- if no such alternative position exists, terminate her.
Of course, the third and fourth options are pretty risky propositions. But depending on how strong a case you can make that the quiet, ambient atmosphere of your restaurant is absolutely essential to the nature of the business and that allowing Kimberly to remain in her position changes the very nature of the business, you might be able to overcome an ADA claim. I think that would be a pretty tough hurdle to clear, so my recommendation would be, if at all possible, to stick with either the first or second option.