Let’s start off acknowledging something. I’m sure that many readers, whether employers or even employees, still think that that deaf people cannot ever safely be lifeguard. Before we get to the legal analysis part of this blog, consider this: “The world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career. One also cannot ignore that the American Red Cross certifies deaf lifeguards, and Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals, has a lifeguard certification program.” Keith v. Oakland County @ 14. Change your mind? Good. Then we’ve take a step to curb employment discrimination.
Most employers and employees know that you cannot discriminate against disabled employees under the Americans with Disabilities Act (“ADA”). As employment discrimination attorneys, we often discuss the requirement for reasonable accommodations. One of the less talked about requirements of the ADA is the requirement that employers to enter into an “interactive process” and make certain “reasonable accommodations” determined through an individualized inquiry or individualized assessment. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question.
Last month, this requirement became the focal point of a Sixth Circuit Court of Appeals decision. Specifically in Keith v. Oakland County, the Sixth Circuit Court of Appeals, which covers Ohio, reversed summary judgment on the issue of whether the plaintiff was “otherwise qualified to be a lifeguard at Oakland County’s wave pool;” and directed the lower court to “address whether Oakland County violated the ADA’s individualized inquiry mandate by relying on the advice and opinions of third parties and failed to engage in the interactive process.” The court explained that “[t]he disability statutes were meant to counter mistaken assumptions, no matter how dramatic or widespread.” Thus, according to the court, despite the prevailing view that the ability to hear a distress call is a requirement for a lifeguard, “[w]hether the supposition is correct is a different question.”
Let’s look at the facts. The plaintiff, Nicholas Keith, is deaf and unable to speak verbally. When wearing an external sound transmitter, he can detect noises through his cochlear implant, such as alarms, whistles, and people calling for him. Keith passed Oakland County’s junior lifeguard training course and lifeguard training program in successive summers. Having received his lifeguard certification, Keith applied for a lifeguard position at Oakland County’s wave pool. The job announcement required applicants to be at least sixteen years old and pass Oakland County’s water safety test and lifeguard training program. The application also contained the following condition of employment: “All persons hired by Oakland County must take and pass a medical examination from a county-appointed physician, at no cost to the applicant.” Keith received an offer of employment, conditioned upon a pre-employment physical.
Shortly thereafter, Keith was examined by Dr. Paul Work, D.O. (Seriously, we are talking about an employment case with an expert named Dr. Work! What is next, a personal injury case with an expert named Dr. Permanent Pain And Suffering?!?) When Dr. Work entered the examination room, he looked at Keith’s medical history and stated, “He’s deaf; he can’t be a lifeguard.” Keith’s mother asked Dr. Work, “Are you telling me you’re going to fail him because he’s deaf?” Dr. Work responded, “Well, I have to. I have a house and three sons to think about. If something happens, they’re not going to sue you, they’re not going to sue the county, they’re going to come after me.” In his report, Dr. Work described Keith as “physically sound except for his deafness.” Dr. Work did not believe that Keith could function independently as a lifeguard, but he thought that he could be a valuable member of a team if properly integrated and monitored. Dr. Work approved Keith’s employment as a lifeguard if his deafness was “constantly accommodated.”
After the County received of Work’s report, they put Keith’s employment on hold. Oakland County then asked for input from Ellis & Associates, an aquatic safety and risk management consulting group for guidance, which in turn expressed concerns, and suggested that a job-task analysis be done to determine whether Keith could perform the job with or without accommodation. Thereafter, Ellis & Associates questioned several of the proposed accommodations in the analysis and remained skeptical about Nicholas’s ability to function properly as a lifeguard. After that, Oakland County pulled the offer of employment.
A year later, Keith again applied to be a lifeguard, as well as a park attendant opening and was not hired for either position. According to Oakland County, he was disqualified from the lifeguard position due to his 2007 pre-employment physical.
Keith filed the ADA discrimination lawsuit asserting that he was “otherwise qualified” for the position and that Oakland County revoked the offer of employment based on unfounded fear and speculation. According to Keith, he would require an interpreter only during staff meetings and further classroom instruction, which he argued is a reasonable accommodation. Keith also complained that Oakland County failed to make an individualized inquiry regarding his ability to perform the job or engage in an interactive process to determine whether he could be reasonably accommodated. As evidence of his qualifications for the position, Keith provided the testimony of several experts.
Nonetheless, the District Court dismissed the lawsuit, holding that Oakland County had made an individualized inquiry about Keith’s abilities, and that Keith failed to show that he could perform the essential communication functions of a lifeguard with or without reasonable accommodation.
On appeal, Keith appealed are argued that the District Court committed reversible error as a matter of law that because: (1) Oakland County made an individualized inquiry regarding Keith’s abilities; (2) he is unqualified to be a lifeguard at Oakland County’s wave pool; (3) accommodating Keith would be unreasonable; and (4) any failure to engage in the interactive process was inconsequential because no reasonable accommodation was possible.
In the end, the Sixth Circuit agreed with Keith, holding that: (1) the Oakland County’s doctor failed to make individualized inquiry as to whether applicant was disqualified from the position due to his disability; (2) a genuine issue of material fact existed as to whether Oakland County made individualized inquiry; (3) a genuine issue of material fact existed as to whether applicant was otherwise qualified for the position; and (4) a genuine issue of material fact existed as to whether modification’s to County’s policies regarding lifeguards proposed by applicant were reasonable accommodations.
So now what happens? The case goes back to the district court for a trial by jury – or more likely, settlement talks start getting more serious.
What is the takeaway from this case? The interactive process and individualized inquiry requirements of the ADA are important. Employers cannot simply make decisions based on what they generally believe are the issues associated with particular disabilities.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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