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Sixth Circuit Revives Deaf Applicant's Claim Over Withdrawn County Lifeguard Position

Friday, January 11, 2013
A Michigan county may have violated federal disability discrimination law when it failed to hire an applicant for a lifeguard position at a pool because he is deaf, the U.S. Court of Appeals for the Sixth Circuit ruled Jan. 10, reversing a lower court (Keith v. Oakland Cnty., 6th Cir., No. 11-2276, 1/10/13).

Addressing an issue of first impression, a unanimous appeals panel rejected the notion that the ability to hear is always an essential function of being a lifeguard.

The court found that summary judgment for Oakland County, Mich., was improper because Nicholas Keith presented evidence that he could rely on visual cues to perform many of the job's key functions and that slight modifications of other aspects of the job would enable him to perform the position's other essential duties.

Keith sued the county under the Americans with Disabilities Act and the Rehabilitation Act when the county in 2007 first offered him a job as a lifeguard at a wave pool but then later withdrew the offer after sending him for a medical examination and consulting with an aquatic safety and risk management company.

The evidence, including that distressed swimmers do not cry out for help--but instead exhibit visual signs of distress--and that Keith could enforce pool safety rules by using a whistle and physical gestures, raised a fact issue on whether Keith was an “otherwise qualified individual with a disability” for purposes of the ADA and the Rehabilitation Act, the court decided.

Expert Evidence Cited
“Perhaps the most compelling evidence that Keith is 'otherwise qualified' comes from his experts who have knowledge, education, and experience regarding the ability of deaf individuals to serve as lifeguards,” Judge Richard Allen Griffin wrote. “They all opine that the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard.”

A rational jury also could find that the slight modifications of the county's pool policies proposed by Keith as well as his request for a sign language interpreter for staff meetings and classroom instruction were reasonable, the appeals court added. It said the county did not argue, much less show, that the proposed accommodations posed an undue business hardship.

The court also observed that the county initially performed the individualized inquiry mandated by the ADA, and found that Keith was qualified for the job. However, the county apparently then relied on the opinions of both its safety and risk consultant and the doctor who examined Keith in deciding to rescind the job offer.

Therefore, the trial court should address on remand whether the county's apparent reliance on the opinions of third parties who did not perform individualized assessments of Keith means that the prior individualized inquiry performed by the county failed to satisfy the requirements of the ADA, Allen said.

He added that whether the county failed to engage Keith in the ADA interactive process to identify a reasonable accommodation for his deafness also needs to be addressed on remand.

“Perhaps the most compelling evidence that Keith is 'otherwise qualified' comes from his experts who have knowledge, education, and experience regarding the ability of deaf individuals to serve as lifeguards,” Judge Griffin wrote. “They all opine that the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard.”

Completed Training, Was Offered Job
According to the opinion, Keith has been deaf since his birth in 1980 and communicates using American Sign Language (ASL). He also has a cochlear implant and can detect noises such as alarms, whistles, and people calling him when wearing an external sound transmitter.

Keith received his lifeguard certification after completing the county's junior lifeguard training course in 2006 and its lifeguard training program the following year. The county provided the services of an ASL interpreter to relay verbal instructions to Keith during both training programs, but Keith received no assistance in training for the physical aspects of the position, such as executing lifesaving tasks.

In 2007, Keith applied for a lifeguard position at the county's wave pool, requesting only that an ASL interpreter be present to relay verbal directions during staff meetings and any further classroom instruction. After checking with her supervisors, Katherine Stavale, the county's recreation specialist, offered Keith the job, conditioned on his passing a pre-employment physical.

According to Keith's mother, the doctor who conducted Keith's physical exam, Dr. Paul Work, entered the room, looked over Keith's medical history, and declared, “He's deaf; he can't be a lifeguard.” When Keith's mother asked if the doctor was going to fail Keith “because he's deaf,” Work allegedly replied: “Well, I have to. I have a house and three sons to think about. 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.”

Work reported to the county that Keith was “physically sound except for his deafness” and could be a valuable member of a team if properly integrated and monitored, but that he could not function independently as a lifeguard. The doctor approved Keith for employment as a lifeguard provided his deafness was “constantly accommodated,” but expressed doubt that any accommodation would always be adequate.

Offer Put on Hold
Stavale placed Keith's employment on hold and contacted Ellis & Associates, an aquatic safety and risk management consulting company the county used for guidance regarding its water park facilities and lifeguard training program.

An Ellis client manager expressed concern to Stavale about whether a deaf individual could perform effectively as a lifeguard and suggested that a job-task analysis be performed to determine Keith's fitness for the job, with or without accommodation.

In addition, Ellis's senior vice president suggested to Stavale that she find out the type of hearing device Keith used and assess his ability to detect a distressed swimmer, and that she also determine whether Keith could perform in the actual work environment at the level outlined for all candidates in the job description.

Neither Ellis employee had any education or experience regarding the ability of deaf people to work as lifeguards, nor did either conduct any research on the issue, the court observed. They also never spoke with Work, communicated with Keith, or observed Keith during training exercises, the court added.

Stavale ultimately prepared a six-page outline describing accommodations she believed would enable Keith to successfully integrate with the lifeguard staff at the wave pool and perform the position. The proposed accommodations included:

  • carrying laminated note cards in his swim trunks pocket to help him communicate with guests in nonemergency situations;

  • using his whistle and shaking his head “no” to enforce pool rules;

  • looking briefly at other lifeguards on duty when scanning his zone to see if they enter the pool to rescue a swimmer;

  • assigning another lifeguard the responsibility of using the megaphone or radio; and

  • slightly modifying the pool's emergency action plan (EAP), so it could be initiated by pumping a fist in the air and then opening and closing it like a siren.

According to Stavale, the last accommodation would not only have helped Keith, but also would have improved the effectiveness of the EAP for the entire team.

Stavale sent her outline to Ellis for feedback, and the client manager questioned several of the proposed accommodations and expressed continued concern regarding Keith's ability to function effectively as a lifeguard. Stavale and her supervisors decided to revoke the county's job offer to Keith.

Keith applied for another lifeguard opening in 2008 as well as a park attendant job, but was not hired for either position. He later sued and summary judgment was granted to the county.

Was Individualized Inquiry Made?
“This appeal pertains only to the lifeguard position,” Allen observed. “The issues in dispute,” he said, “are whether Oakland County made an individualized inquiry, whether Keith is otherwise qualified for the position in question with or without reasonable accommodation, and whether Oakland County engaged in the interactive process.”

The ADA requires an employer to perform an individualized inquiry of a worker who claims to be disabled to determine if the worker's claimed disability renders him or her unable to perform the job, Allen said. He explained that the requirement flows from the statute's “underlying objective” of ensuring that individuals with disabilities are judged according to their abilities, not based on fears, biases, or ignorance.

The district court properly found that Work did not make an individualized inquiry with regard to Keith and instead conducted the type of “cursory medical examination … the ADA was designed to prohibit,” Allen said. He found that the Ellis employees also failed to individually assess Keith and, as did Work, lacked the training, education, or experience to do so.

The county did, however, on its own perform the required ADA individualized inquiry, and “both staff and management were on board with the plan to hire Keith,” the appeals court found. Nevertheless, something changed and Keith was not offered the job.

That might have undone the county's seeming compliance with the statute's individualized inquiry mandate, the court found. “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 these questions on remand,” the court said.

Issue of First Impression
As to the second issue on appeal, Allen observed that “[w]hether the ability to hear is an essential function of a lifeguard position has not been addressed by this court and, as far as we can tell, no court has squarely addressed it.”

In the absence of case law, courts look to the text of the statute and accompanying regulations, Allen said. Ultimately, he said, whether a job function is essential typically is a question for a jury, not a court on summary judgment.

Keith's evidence was sufficient to raise a question for a jury, the court determined. It cited the testimony of Stavale and three expert witnesses, including a physician who has worked extensively with hearing impaired individuals and a professor and certified American Red Cross training instructor who has worked with deaf individuals in the area of lifeguarding and aquatics for more than 30 years.

Among other things, they testified that there have been no reported incidents of drowning or near drowning of any individuals a deaf lifeguard was responsible for, and that the world record-holder for most lives saved by a lifeguard is a deaf man, who saved more than 900 lives during his career, Allen said. He found that the experts also all testified that the ability to hear is not essential to the successful performance of lifeguard duties.

“In light of this evidence, we hold that reasonable minds could differ regarding whether Keith is 'otherwise qualified' because he can perform the essential communication functions of a lifeguard. The district court erred when it decided that Keith's deafness disqualified him from the position as a matter of law,” the appeals court ruled.

The minor job changes suggested by Stavale and proposed by Keith would not necessarily be unreasonable under the ADA, which permits the restructuring of “marginal” job functions, the court said. It also joined other circuits in holding that limited provision of an ASL interpreter for staff meetings and training is not per se unreasonable under the ADA.

The statute itself expressly states that the provision of “qualified readers or interpreters” may be a reasonable accommodation, Allen observed. He said the case relied on by the district court was inapposite because the plaintiff there in essence requested a full-time assistant, not a part-time interpreter.

Finally, because the district court did not reach the merits of Keith's contention that the county failed to engage in the required ADA interactive process, it should do so on remand, Allen said.

Judges Jeffrey S. Sutton and Helene N. White joined the opinion.

Donald M. Fulkerson of Westland, Mich., and Joey S. Niskar of Bingham Farms, Mich., represented Keith. John J. Lynch and Christian E. Hildebrandt of Vandeveer Garzia in Troy, Mich., and Keith J. Lerminiaux of the county corporate counsel's office in Pontiac, Mich., represented Oakland County.

By Patrick Dorrian

Text of the opinion is available at /uploadedFiles/Content/News/Legal_and_Business/Bloomberg_Law/Legal_Reports/keith0113(1).pdf.

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