Reasonable Accommodation May Be Possible for Deaf Lifeguard: Sixth Circuit | Practical Law

Reasonable Accommodation May Be Possible for Deaf Lifeguard: Sixth Circuit | Practical Law

In Keith v. County of Oakland, the US Court of Appeals for the Sixth Circuit reversed summary judgment in favor of the defendants, concluding that genuine issues of material fact exist regarding whether a deaf individual is otherwise qualified to be a County lifeguard and can be provided with a reasonable accommodation under the Americans with Disabilities Act (ADA).

Reasonable Accommodation May Be Possible for Deaf Lifeguard: Sixth Circuit

Practical Law Legal Update 9-523-5744 (Approx. 4 pages)

Reasonable Accommodation May Be Possible for Deaf Lifeguard: Sixth Circuit

by PLC Labor & Employment
Published on 15 Jan 2013 • USA (National/Federal)
In Keith v. County of Oakland, the US Court of Appeals for the Sixth Circuit reversed summary judgment in favor of the defendants, concluding that genuine issues of material fact exist regarding whether a deaf individual is otherwise qualified to be a County lifeguard and can be provided with a reasonable accommodation under the Americans with Disabilities Act (ADA).
The US Court of Appeals for the Sixth Circuit issued an opinion on January 10, 2013, in Keith v. County of Oakland, concluding that genuine issues of material fact exist about whether a deaf individual is otherwise qualified to be a lifeguard, with or without reasonable accommodation under the ADA.
Plaintiff Nicholas Keith, who has been deaf since birth, filed this action alleging that defendant Oakland County discriminated against him on the basis of disability in violation of the ADA and the Rehabilitation Act of 1973 (Rehabilitation Act) when it failed to hire him as a lifeguard.
Keith, who had successfully passed the requisite tests and received his lifeguard certification from Oakland County, applied for a position at Oakland County's wave pool. Oakland County's recreation specialist extended Keith an offer of employment, conditioned on a pre-employment physical. All applicants were required to submit to the same pre-employment physical. Keith was examined by a physician who described Keith as "physically sound except for his deafness." The physician approved Keith's employment as a lifeguard only if he was "constantly accommodated." Consultants that guide Oakland County regarding its lifeguard training program expressed concern about whether a deaf individual could perform effectively as a lifeguard. Ultimately, Oakland County decided to revoke Keith's offer of employment. A year later, Oakland County also refused to consider Keith for another lifeguard opening, based on his 2007 pre-employment physical.
Keith filed a complaint in the district court alleging violations of the ADA and the Rehabilitation Act. Oakland County moved for summary judgment, arguing that:
  • Keith is not "otherwise qualified" to be a lifeguard at its wave pool because he cannot effectively communicate with other lifeguards, patrons, emergency personnel and injured persons.
  • Hiring an additional lifeguard as an interpreter is an unreasonable accommodation.
Keith responded that:
  • He is "otherwise qualified" for the position.
  • Oakland County revoked the offer of employment based on unfounded fear and speculation.
  • He would require an interpreter only during staff meetings and further classroom instruction, which he argued is a reasonable accommodation.
  • Oakland County failed to:
    • make an individualized inquiry regarding his ability to perform the job; or
    • engage in an interactive process to determine whether he could be reasonably accommodated.
The parties did not dispute that Keith is disabled within the meaning of the ADA or that Oakland County rescinded the offer of employment because of his disability. The key issues in dispute are whether:
  • Oakland County made an individualized inquiry.
  • Oakland County engaged in the interactive process.
The Sixth Circuit explained that the ADA requires that an employer make an individualized inquiry to determine whether an applicant's disability disqualifies him from a specific position. A proper individualized inquiry should include consideration of:
  • The applicant's personal characteristics.
  • The applicant's actual medical condition.
  • The effects his condition may have on his ability to perform the job in question.
(Holiday v. City of Chattanooga.)
Based on this analysis, the court concluded that:
  • The physician who examined Keith failed to make an individualized inquiry. He only briefly reviewed Keith's file, and quickly concluded that "He's deaf; he can't be a lifeguard."
  • Oakland County, the ultimate decision-maker, did however make an individualized inquiry because:
    • Keith's abilities were observed during lifeguard training;
    • accommodations were proposed to integrate him; and
    • staff and management were on board with the plan to hire him.
  • The district court should consider the following questions on remand:
    • did Oakland County alter its assessment based on the physician's report and the advice of the consultants; and
    • if so, did Oakland County's individualized inquiry satisfy the ADA's mandate?
The court also considered whether Oakland County engaged in the interactive process required under the ADA. Regarding the interactive process, the court explained that:
  • The duty to engage in the interactive process "requires communication and good-faith exploration of possible accommodations."
  • 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."
(Kleiber v. Honda of Am. Mfg.)
Keith argued that Oakland County refused to engage in an interactive process with him before revoking his offer of employment. The court came to the conclusion that the district court should address the merits of this argument on remand.
Court documents: