The Americans with Disabilities Act requires employers to provide employees with reasonable accommodations that allow the employees to complete the essential functions of their job so long as the accommodation does not create an undue hardship on the employer. Determining what sorts of accommodations might work for an individual is supposed to occur through an “interactive process” of dialogue between the employee and employer, with each side proposing potential adjustments and both sides commenting in an attempt to find a solution. A recent case from the 6th Circuit Court of Appeals shows just how important that dialogue is. See Keith v. County of Oakland, No. 11-2276 (6th Cir. Jan. 10, 2012).
Analysis of this intriguing case (spoiler alert – it is about a deaf individual who wants to be a lifeguard), after the jump…
Keith was a deaf man who applied for a lifeguard position with a county pool. Despite being unable to hear or communicate verbally, he had completed both the junior lifeguard training and the general lifeguard training, receiving his lifeguard certification. Employees with a lifeguard certification and who passed a basic water safety test were eligible for employment, provided they also submitted to a general medical health examination. Having fulfilled all of the other prerequisites, Keith was extended an offer of employment conditioned only on the pre-employment examination.
At the examination, a doctor reviewed Keith’s medical history and told Keith and his mother “He’s deaf; he can’t be a lifeguard.” When asked whether the doctor would fail Keith because of his deafness, the doctor replied “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.” The doctor then issued a report describing Keith as “physically sound except for his deafness” and stating that he would only release Keith to be a lifeguard if his deafness was “constantly accommodated” (emphasis in original).
After receiving the report, the employer contacted a group of aquatic safety and risk management consultants to discuss the possibility of hiring a deaf lifeguard. The consultant expressed concern but was not able to provide a definitive answer due to his lack of familiarity with Keith or the county facility. In response, the employer drafted a six-page outline setting forth potential accommodations that they believed might allow Keith to work as a lifeguard. When the consultant’s reticence continued, the employer withdrew the offer of employment.
Crucially, at no point did the employer or the consultant ever research the issue of deaf individuals working as lifeguards nor did they have any experience or education in the matter. Additionally, after the initial medical examination, Keith was never contacted by the employer until he was notified that his offer of employment was being withdrawn.
Keith brought suit for violation of his rights under the Americans with Disabilities Act. At trial, Keith produced testimony from experts who stated that the ability to hear is unnecessary to the essential functions of lifeguarding because the signs of a swimmer in distress are almost never auditory. Additionally, they testified that the current world record holder for most lives saved is a deaf man, Leroy Colombo, who saved over 900 lives in his career. Regardless, the court granted summary judgment for the employer held that they had made an “individualized inquiry” regarding Keith’s abilities and that Keith had not demonstrated an ability to complete the essential communication functions of a lifeguard even with a reasonable accommodation.
On appeal, the appellate court agreed with the district court that the employer had made an individualized assessment. However, they noted that the offer of employment was provided after that individualized assessment and only rescinded once the employer received opinions from the doctor and consultant who had no experience with Keith’s ability as a lifeguard. The court noted that an employer may not rely purely on the advice of third parties when making disability or accommodation decisions and turned to consider Keith’s qualification for the position and whether he could complete all of the essential functions with a reasonable accommodation. Relying on the testimony of Keith’s experts and the list of potential accommodations created by the employer, the court held that Keith had demonstrated sufficient facts to raise a genuine issue of material fact as to both his qualification for the position and the existence of potential accommodations. Therefore, the court reversed summary judgement on all of these matters.
The final issue that the court addressed was whether the employer had participated in the ADA required “interactive process.” The court focused on the fact that the employer never consulted with Keith on any part of their individualized assessment. The court noted that if they had, Keith may have been able to connect them with information and experts on his condition that would have answered the concerns of the employer. Therefore, the court remanded the decision for additional analysis of whether this failure was an additional violation of the ADA.
Keith demonstrates the need to see past prejudices related to certain disabilities. From a legal standpoint, it’s also important for employers to understand how important it is to participate in the interactive process of disability accommodation. Even though the employer in Keith completed an individualized assessment, the fact that they did not include the plaintiff in that process was sufficient to provide grounds for a separate violation of the ADA. Employers must know that if there is even a chance that an individual could work in a position, with accommodations, they are obligated to work with that individual to find a satisfactory conclusion.