The U.S. 6th Circuit Court of Appeals (whose rulings apply to Ohio employers as well as employers in Michigan) recently reversed a Michigan district court's ruling in a disability discrimination case involving a deaf job applicant. The court found that the applicant's rights under the Americans with Disabilities Act (ADA) may have been violated when Oakland County revoked its offer to hire him as a lifeguard.
Nicholas Keith, who was born deaf, successfully completed Oakland County's lifeguard training program in 2007. After receiving his lifeguard certification, he applied for a position at the county's wave pool. The job announcement required each applicant to be at least 16 years old and pass the county's water safety test and lifeguard training program. The announcement also included a condition of employment stating, "All persons hired by Oakland County must take and pass a medical examination from a county-appointed physician, at no cost to the applicant."
Recreation specialist Katherine Stavale explained to her supervisors that Keith had requested an interpreter to assist him during staff meetings and classroom instruction if the county offered him a position. After receiving no objections, she offered him a part-time job and scheduled his medical exam. Keith and his mother met with Dr. Paul Work a short time later. Upon entering the exam room, Work stated, "He's deaf; he can't be a lifeguard." Keith's mother asked, "Are you telling me you're going to fail him because he is deaf?" Work responded, "Well, I have to." The physician informed Stavale that Keith couldn't function independently as a lifeguard unless he was "constantly accommodated."
After receiving Work's report, Stavale placed Keith's employment on hold and contacted the client manager for aquatic safety and risk management. She was directed to perform a job-task analysis to determine whether Keith could perform the job with or without an accommodation.
Stavale prepared a six-page outline of accommodations that she believed would successfully integrate Keith into the lifeguard position and forwarded the document to the client manager; however, she didn't speak with Keith about the accommodations. The client manager stated that he didn't think Keith could safely work by himself. Based on the client manager's advice, Stavale revoked the offer of employment.
In 2008, Keith applied for another lifeguard position, but again, he wasn't hired. This time, he filed a complaint in Michigan district court alleging violations of the ADA and the Rehabilitation Act. The county asked the court to dismiss the lawsuit, arguing that Keith wasn't "otherwise qualified" to be a lifeguard because he couldn't effectively communicate with other lifeguards, patrons, emergency personnel, and injured swimmers. Keith responded that he was "otherwise qualified," but the district court granted the county's request and dismissed the case.
Keith appealed to the 6th Circuit, arguing that the district court erred on four points:
- The county didn't make an individualized inquiry into his abilities.
- He is "otherwise qualified" for the lifeguard position.
- His requested accommodation (having an interpreter assist him during meetings and classroom instruction) was reasonable.
- The county failed to engage in the interactive process.
6th Circuit's decision
The court first evaluated whether the county had conducted an individualized inquiry, stating, "A proper evaluation involves consideration of the applicant's personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question." The court noted, "The ADA requires employers to act, not based on stereotypes and generalizations about a disability, but based on the actual disability and the effect that disability has on the particular individual's ability to perform the job." The court found that Work made no effort to determine whether Keith could perform the essential functions of the lifeguard position despite his deafness, either with or without a reasonable accommodation.
Next, the court analyzed whether the ability to hear is an essential function of the lifeguard job. An individual is "otherwise qualified" for a position if he can perform the "essential functions" of the job with or without a reasonable accommodation. The court found that the ability to effectively communicate is an essential function of being a lifeguard for Oakland County, and Keith had presented evidence that he could communicate effectively with a distressed swimmer, other lifeguards, and patrons during emergency situations.
Keith also presented evidence that he was "otherwise qualified" from experts with knowledge, education, and experience related to the ability of deaf individuals to serve as lifeguards. In light of the evidence, the 6th Circuit found the district court erred when it decided Keith's deafness disqualified him from the lifeguard position.
In determining whether Keith's requested accommodation was objectively reasonable, the court stated that the question of reasonableness is generally a fact issue. In response to his request to have an interpreter present during staff meetings and classroom instruction, the court stated, "The inclusion of interpreters among the list of enumerated reasonable accommodations suggests to us that the provision of an interpreter will often be reasonable, particularly when the interpreter is needed only on occasion[—]in this instance, just [at] staff meetings and training." The court found the district court's dismissal of the case inappropriate because the county hadn't stated that the accommodation would impose an undue hardship on its operations and a reasonable jury could find the request for an interpreter during staff meetings and classroom instruction objectively reasonable.
Finally, the court turned to the ADA's requirement that an employer engage in the interactive process. The purpose of the interactive process is to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Keith provided evidence that the county failed to contact or otherwise interact with him before revoking its offer of employment. The 6th Circuit again found the district court's ruling erroneous because Keith had met the burden of showing that a reasonable accommodation was possible. Having found genuine issues of fact about whether he was otherwise qualified to be a lifeguard with or without a reasonable accommodation, the 6th Circuit reversed the district court's dismissal of the case. Keith v. County of Oakland.
Bottom line for employers
Here are some things to keep in mind when you're dealing with a disabled job applicant:
- Make sure your hiring personnel are familiar with the requirements of the ADA.
- Evaluate each disabled applicant based on his personal characteristics, actual medical condition, and the effect, if any, the condition will have on his ability to perform the job.
- Consider creating a list of essential functions for each job that can be used to determine whether a person is "otherwise qualified" for the position.
- Review the list of enumerated reasonable accommodations in the ADA before determining whether an accommodation is reasonable. If the accommodation isn't listed, evaluate each requested accommodation to determine whether it's reasonable or would cause your company undue hardship.
- Communicate with the disabled applicant to identify his precise limitations and the potential reasonable accommodations that could overcome those limitations.