Employer’s Reliance on Third Party Assessment to Determine Reasonable Accommodation May Lead to ADA Liability

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The Sixth Circuit Court of Appeals recently addressed an issue of first impression, holding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, No. 11-2276 (6th Cir. January 10, 2013). In addition, the court made a number of other, more generally applicable observations. The most noteworthy is a statement that seems to create an obligation on the part of an employer to fully understand the background and experience of any expert who is relied upon to assist in determining whether a disabled individual can be accommodated in a particular position.

Nicholas Keith has been deaf since his birth in 1980. He communicates primarily by using American Sign Language (ASL), but he can detect noises—including alarms, whistles, and loud voices—through a cochlear implant. In 2006, Keith enrolled in and successfully completed a junior lifeguard training course conducted by Oakland County, Michigan (the County), using an ASL interpreter to relay verbal instructions to him. In 2007, Keith successfully completed the County’s lifeguard training course, again with the assistance of an interpreter, although Keith executed all lifesaving tasks and training techniques himself.

Upon successful completion of the trainings, Keith applied for a part-time lifeguard position at the County’s wave pool, asking only that an ASL interpreter be present at staff meetings and further classroom instruction. Katherine Stavale, the County’s recreation specialist, offered the position to Keith, contingent upon a pre-employment physical. At the physical examination, the County’s doctor, Paul Work, reviewed Keith’s medical history and stated to Keith’s mother, “He’s deaf; he can’t be a lifeguard,” adding that he (the doctor) would be sued if “something happens.”

Based on Work’s opinion, Stavale placed the offer on hold and contacted Ellis & Associates, a group of aquatic safety/risk management consultants used by the County regarding its water parks and lifeguard training program. Stavale discussed Keith’s situation with a client manager and a vice president from Ellis in an attempt to determine whether and how to accommodate Keith. Neither of those individuals had any education, training, or experience regarding the ability of deaf people to work as lifeguards, and they did not research the issue. In spite of a six-page outline prepared by Stavale setting forth accommodations that she believed could successfully integrate Keith, the consultants remained concerned about Keith’s ability to function effectively as a lifeguard. The client manager specifically stated that “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Based on the input from Ellis, the employment offer to Keith was withdrawn.

Keith filed a lawsuit, claiming disability discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973. The district court granted summary judgment in favor of the County, finding that although Dr. Work’s cursory medical examination and conclusory decision about Keith’s ability to be a lifeguard did not constitute the “individualized inquiry” required under the ADA, the County’s own inquiries and discussions with Keith did so. The court also concluded that Keith failed to show that he could perform the “essential communication functions” of a lifeguard and that, therefore, there had been no violation of the statutes.

On appeal, the Sixth Circuit reversed that decision, stating that whether a job function is essential typically is a factual question for the jury and not a legal question for a court on summary judgment.  Further, it pointed out that unlike the consultants from Ellis & Associates, one expert who provided input on behalf of Keith worked extensively with hearing impaired individuals and was a certified training instructor who had worked with deaf individuals in the field of lifeguarding and aquatics, certifying over 1,000 deaf lifeguards through American Red Cross training programs. Keith also provided testimony from a physician specializing in neurodevelopmental disabilities who had worked with hearing impaired individuals for over 30 years and who stated an opinion that in a noisy swimming area, recognizing a potential problem is almost completely visually based. It was this doctor’s opinion that Keith’s deafness should neither disqualify him as a lifeguard nor require constant accommodation.

The Sixth Circuit determined that the County initially had participated in an “interactive process” with Keith, compiling a list of ways in which he could be successfully accommodated in the lifeguard position.   However, the County ultimately withdrew the employment offer after it consulted with Ellis & Associates, who based its advice on non-specific assumptions and generalizations regarding hearing-impaired individuals. The court held that fact-based questions existed that were sufficient to reverse the lower court’s dismissal of the case and send it back to that court for a trial by jury.

In assessing the sufficiency of the County’s participation in the required interactive process, the court made a statement that should get the attention of any employer who is involved in determining the reasonableness of an employee or applicant’s requested accommodation: “Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider [the question of why the County rejected Keith’s requested accommodation] on remand.” In other words, the County’s deference to its consultant’s opinion on the issue of how to accommodate Keith may vitiate the County’s compliance with the ADA’s requirement regarding the interactive process. Based on that statement, any employer relying on input from a third party to assess the reasonableness of accommodations requested by an employee or applicant should determine whether the input was obtained from an individualized assessment or was simply based upon assumptions and non-specific information.  Without an individualized review by the consultant, the employer could lose the benefit of its own initial participation in the required interactive process.

Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.


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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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