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Executive Summary: The Sixth Circuit has reversed the decision of a lower court and held that a deaf individual should be permitted to proceed to trial on his claim that a prospective employer discriminated against him on the basis of disability by failing to hire him as a lifeguard. Keith v. County of Oakland, (6th Cir. Jan. 10, 2013). In reviving the Americans with Disabilities Act (ADA) claim, the Court found that a jury should be permitted to determine whether the individual was otherwise qualified to be a lifeguard, with or without accommodation, that is, whether hearing is an essential function of the job and, if so, whether reasonable accommodations could have been made.
The county of Oakland extended an offer of employment as a lifeguard to Nicholas Keith, who has been deaf since birth, conditioned on passing a pre-employment physical. Keith had passed the county's lifeguard training course and program with the assistance of an American Sign Language ("ASL") interpreter for verbal instructions. The interpreter did not assist Keith in executing lifesaving tasks.
The doctor who examined Keith for his pre-employment physical stated that Keith could not function independently as a lifeguard, but that he could be a part of the lifeguard team if his deafness was "constantly" accommodated and, even then, expressed doubt as to whether the accommodation would always be adequate.
Two representatives of the county's aquatic safety and risk management consultant group also expressed doubt and concern over Keith's fitness as a lifeguard. Like the county's doctor, neither consultant had knowledge, education, nor experience regarding the abilities of deaf people to work as lifeguards. The consultants did not personally meet with or observe Keith. The county's recreation specialist suggested possible accommodations that she believed would integrate Keith, but the consultants remained hesitant. The county subsequently revoked Keith's offer of employment.
Keith sued the county for disability discrimination under the ADA and the Rehabilitation Act. The trial court ruled in favor of the county and Keith appealed this decision to the Sixth Circuit.
Sixth Circuit's Reasoning
The Sixth Circuit reversed the district court's grant of summary judgment to the county, holding that a genuine issue of material fact existed as to whether Keith was "otherwise qualified" to be a lifeguard, with or without reasonable accommodation. The ADA makes it unlawful to discriminate against "a qualified individual on the basis of disability" and defines "discriminate" to include failure to provide reasonable accommodation to an otherwise qualified individual with disability unless doing so would impose an undue hardship on the employer's business. 42 U.S.C. § 12112(a), (b)(5). "Otherwise qualified" is defined as being able to perform the "essential functions" of the job with or without reasonable accommodation.
The Court held that whether a job function is "essential" is usually a question of fact for the jury, not summary judgment. Relying extensively on the expert testimony of individuals with knowledge, education, and experience regarding deaf lifeguards, as offered by Keith and seemingly unrebutted by the county, the Court found a genuine issue of fact as to whether Keith was "otherwise qualified" to be a lifeguard.
For instance, the evidence showed that lifeguards adhere to a purely visual scanning methodology to identify distressed swimmers. Keith also presented evidence that he could enforce safety rules around the pool because most lifeguards depend on the use of whistles combined with simple visual gestures. Keith further argued he could effectively communicate in emergencies if a hand signal instead of a whistle were used to activate an emergency action plan, a modification that was proposed by the county's recreational specialist as an improvement for everyone. Keith also proposed that he could respond to patrons, at least to a level considered "essential" for a lifeguard, by keeping a few laminated note cards in his pocket for basic phrases, such as "I am deaf. I will get someone to assist you. Wait here."
The Court also held that, even if Keith needed accommodations to perform the essential functions of the job, he had presented evidence that those accommodations were reasonable. Proposed accommodations included, for example, the use of note cards, hand signals instead of whistles, and the provision of an ASL interpreter during staff meetings or classroom instruction. The Court recognized the county's valid concern that employees would have to shoulder extra duties because of Keith's disability, but held that this alone was not a sufficient reason to grant summary judgment.
The Court also directed the lower court to examine the issue of whether the county conducted an "individualized inquiry" in determining whether Keith's disability disqualified him from the lifeguard position. The Court did "not disagree" that the county had made an individualized inquiry, as mandated by the ADA, by observing Keith during training, proposing accommodations to integrate him into the lifeguard team, and planning to hire Keith. However, the Court questioned "what changed" afterward.
Employers' Bottom Line: This case illustrates that disability discrimination statutes require employers to "counter mistaken assumptions [about disabilities], no matter how dramatic or widespread." Employers should consider, particularly in difficult situations, the benefits of consulting not only with medical experts or experts in an employer's field of work (in this case, aquatic safety), but also with experts who have knowledge, education, and/or experience with the particular disability in question and its application and relevance to the job at issue.
If you have any questions regarding this Alert, or other labor or employment related issues, please contact the FordHarrison attorney with whom you usually work or the author of the Alert, Roshni Chaudhari, firstname.lastname@example.org, an attorney in our New York City office.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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