Employers in the 6th Circuit (Michigan, Ohio, Kentucky and Tennessee) should carefully consider the advice and opinions of third parties on whether an applicant can perform a job before withdrawing a conditional job offer, as a new ruling shows.
In Keith v. County of Oakland, +2013 U.S. App. LEXIS 595 (6th Cir. 2013), the court addressed whether the employer violated the Americans with Disabilities Act (ADA) by failing to conduct an individual inquiry of the applicant when it relied on the general assessments of third parties.
The ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause an undue hardship on the employer's business. Once an employer is aware that an employee has a disability under the ADA and the disability is affecting the employee's ability to perform the essential functions of the job, the employer and employee must engage in an open-ended dialogue, known as the interactive process, to determine if a reasonable accommodation exists to enable the employee to perform the essential functions of the job.
In this case, the plaintiff (Keith) had applied for a lifeguarding position with Oakland County, Michigan. Keith has been deaf since birth. Prior to applying for the lifeguarding position, Keith had successfully completed the lifeguard training program with the assistance of an American Sign Language (ASL) interpreter to communicate verbal instructions.
Keith was offered the lifeguard position on the condition that he pass a preemployment physical. Although the examination physician found Keith to be physically sound except for his deafness, he did not believe that Keith could function independently as a lifeguard. The physician reached this conclusion without making any effort to determine if Keith could perform the essential functions of the position with or without a reasonable accommodation.
Following the preemployment physical, Oakland County contacted a safety and risk management consulting firm for further guidance. The risk management consulting firm advised against hiring Keith despite the fact that it never met Keith, had no education or experience regarding the ability of the hearing impaired to work as lifeguards, and did not conduct any research on this issue. Instead the risk management consulting firm made generalizations regarding the hearing impaired. Oakland County withdrew the employment offer and Keith sued soon after.
At trial, Keith introduced evidence that he could perform the essential communications duties of a lifeguard by responding to patrons with laminated note cards, by blowing the whistle, and using physical gestures such as by shaking his head "no". Keith also presented evidence that he could scan his zone, which is purely visual. Also, Keith presented expert testimony from several witnesses who testified that hearing is not necessary for a person to perform the essential functions of a lifeguard. Keith only requested an interpreter for the limited purpose for staff meetings and classroom instruction as a reasonable accommodation. Further, Keith argued that Oakland County never contacted him directly or otherwise interacted with him before rescinding the job offer. Nevertheless, the district court dismissed the case and Keith appealed.
The 6th Circuit reversed the district court's decision because there remained questions about whether Keith is qualified to be a lifeguard since he can perform the essential communication functions of a lifeguard. It sent the case back to the district court with instructions 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."
This case illustrates that employers that request that a third party assess an employee's ability to perform the job must ensure that the third party engages in an individualized assessment rather than simply making generalizations regarding an applicant's condition. Otherwise, if an employer takes an adverse action based on a third party's general assessment, such as withdrawing an employment offer, it can be exposed to an ADA claim.
Recruiting and Hiring > Employment Offer
Recruiting and Hiring > Preemployment Screening and Testing
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