New Sixth Circuit ADA Opinion May Make Employers Rethink How They Engage in the Interactive Process

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Nicholas Keith has been deaf since birth.  After initially being offered a job as a lifeguard for Oakland County, Michigan, he, like all other County lifeguards, had to undergo a physical performed by a physician retained by the County.  Upon seeing that Nicholas was deaf, the physician performing the physical told him and his mother that he would “have to disqualify him for a lifeguard position” even though he was “physically sound except for his deafness.”
To its credit, Oakland County did not disqualify Nicholas based on this report.  It also contacted a risk management consulting firm who regularly advised the County regarding its water park, pools and other aquatic facilities.  Unfortunately, these consultants (1) never met Nicholas, (2) had no experience accommodating deaf individuals in aquatic settings, and (3) performed no research regarding the same.  The risk management firm simply “expressed concern” over Nicholas’s ability to “be responsible for a lifeguard stand by himself.” 
Based on this “double whammy” of both its physician and its risk management consultants advising against hiring Nicholas, the County withdrew its offer to him of a lifeguard position – even though by this time he already had completed the training for the job.
Nicholas sued the County under the Americans with Disabilities Act (ADA).  The District Court dismissed his case on the grounds that even if “more could have been done” regarding engaging in the interactive process with him, Nicholas could not show that he could perform the essential functions of being a lifeguard either with or without a reasonable accommodation.
In Nicholas Keith v. Oakland County, 2013 WL 115647 (6th Cir., Jan. 10, 2013), the Sixth Circuit Court of Appeals disagreed with the District Court’s reasoning on the sole ground that it found that the County did not engage in an “individualized inquiry” regarding Nicholas’s ability to be a lifeguard – as opposed to relying on its physician and risk management consultants’ “general assessments” that “deaf people cannot be lifeguards.”
As we stated at the outset of this alert, the Sixth Circuit did not find that the County has lost or  necessarily “will lose” this case.  The case was simply remanded back to the District Court so that the sole issue of whether “this particular deaf person” rather than “deaf people in general” could perform the essential functions of the specific lifeguard position at issue can be resolved at trial.  
Lessons Learned
Most employers probably realize that employment decisions which are based on “stereotypes” of any kind are problematic legally.  This case illustrates that basing such decisions on “stereotypes” is no less problematic just because these stereotypes or broad generalizations are confirmed by “experts” such as physicians or risk management consultants -- who have never actually met the person in question and/or are not familiar with the specific characteristic this person possesses and/or its effect on the particular position in question.
Interestingly, prior to the County making its final decision based on its experts’ advice, the County’s recreation specialist, who had originally admitted Nicholas into the County’s lifeguard training program and extended the initial offer to be a lifeguard to him, had done some research on her own concerning Nicholas’s situation and had come up with a seven-point plan that she believed could work.  This research revealed that distressed swimmers usually cannot call out for help – such that Nicholas’s inability to hear actually should not affect his ability to perform the most critical part of being a lifeguard.  Regarding other non-critical areas, the plan included “creating laminated cards for Nicholas to give out in non-emergency situations explaining that he was deaf but could read lips, having Nicholas use his whistle and simply point and shake his head ‘no’ when seeing a swimmer engage in prohibited conduct, providing a sign-language interpreter for group meetings, and having the other lifeguards raise their arms with a fist in the air and open and close their hands rapidly as a kind of ‘visual alarm/signal’ rather than calling out in the event of an emergency which required more than one of them to respond.”  The recreation specialist implemented this last idea even though Nicholas was not ultimately hired because with all the other noise of a typical day at a pool or water park filled with kids she concluded that visual signals actually would be a more effective means of the lifeguards notifying one another of an emergency than simply “calling out” would be anyway.
All this to say, long story short, that “experts” should not be the end-all-be-all of the interactive process – especially if those “experts” have never even met the person you are asking them about.  (Notably, the “risk management consultants” used in this case also had never been to the County’s water park or pool facilities while they were open.)  There is certainly nothing wrong with using experts as part of the interactive process; but don’t ignore good ol’ fashioned common sense when doing so.  Also, make sure the “experts” you consult actually have researched or otherwise have experience regarding the particular context or issue you are discussing with them – rather than just a relevant-sounding title on their business cards or even an M.D. at the end of their name.
For further guidance or assistance concerning the interactive process, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.