Deaf Lifeguard to Receive Jury Trial on Whether Employer Reasonably Accommodated His Disability

Deaf Lifeguard to Receive Jury Trial on Whether Employer Reasonably Accommodated His Disability

People realize that not everyone is alike; some people are tall, some people have blue eyes, some people are deaf. Nicholas Keith just happened to be deaf since birth. But what most people don't realize is that that disability laws--namely, the Americans Disabilities Act (ADA) and usually equivalent state law--protect people like Nicholas who have handicaps or disabilities from employment discrimination. The ADA also requires employers to enter into an "interactive process" and make certain "reasonable accommodations" so that people like Nicholas have an opportunity to work. This point is illustrated by his lawsuit against his potential employer in Keith v. Oakland County, 2013 WL 115647 (6th Cir., Jan. 10, 2013); where the Sixth Circuit Court of Appeals overturned a lower court's dismissal of the case and found that there existed an issue of fact (to be decided by a jury) as to whether Oakland County engaged in an "individual inquiry" for Nicholas.

In the Keith case, the Plaintiff Nicholas Keith filed suit under the ADA and Rehabilitation Act and claimed that by the County not hiring him as a lifeguard, it violated the law. The District Court disagreed with Nicholas and granted summary judgment for the County. Nicholas timely appealed.

In 2006, Nicholas enrolled in Oakland Country's junior lifeguard training course. A year later, he enrolled in the County's lifeguard training program. He successfully passed the training and received his lifeguard certification. He then applied for a lifeguard position at Oakland County's wave pool and was initially offered a position, which was conditioned upon a pre-employment physical by a County-appointed physician.

The County's physician examined Nicholas and in his report stated that he was "physically sound except for his deafness." However, the physician approved his lifeguard employment so long as his deafness was "constantly accommodated."

After the County learned of the report, Nicholas's employment was put on hold. The County then contacted Ellis & Associates, an aquatic safety and risk management consulting group for guidance. Ellis & Associates expressed concerns, and suggested that a job-task analysis be done to determine whether Nicholas could perform the job with or without accommodation.

After the discussions, a six-page outline setting forth accommodations the County believed could successfully integrate Nicholas as a lifeguard was sent to consulting group. The consulting group questioned several of the accommodations in the outline and remained skeptical about Nicholas's ability to function properly as a lifeguard. After that, the County revoked the offer of employment.

In 2008, Nicholas applied again for a lifeguard opening, as well as a park attendant opening and was not hired for either position. According to the County, he was disqualified from the lifeguard position due to his 2007 pre-employment physical. Nicholas then filed the ADA lawsuit alleging that he is "otherwise qualified" for the position and that Oakland County revoked the offer of employment based on unfounded fear and speculation. Expert witnesses testified in Nicholas's favor to and stated that he was qualified for the position.
However, the District Court dismissed the case based on its determination that the County had made an individualized inquiry about Nicholas's abilities, and that Nicholas failed to show that he could perform the essential communication functions of a lifeguard with or without reasonable accommodation.

Nicholas appealed are argued that the District Court erred when it concluded as a matter of law that: (1) Oakland County made an individualized inquiry regarding Keith's abilities; (2) he is unqualified to be a lifeguard at Oakland County's wave pool; (3) accommodating Keith would be unreasonable; and (4) any failure to engage in the interactive process was inconsequential because no reasonable accommodation was possible.

Ultimately, on appeal, the Sixth Circuit agreed with Nicholas and held that: (1) the County's doctor failed to make individualized inquiry as to whether applicant was disqualified from the position due to his disability; (2) a genuine issue of material fact existed as to whether County made individualized inquiry; (3) a genuine issue of material fact existed as to whether applicant was otherwise qualified for the position; and (4) a genuine issue of material fact existed as to whether modification's to County's policies regarding lifeguards proposed by applicant were reasonable accommodations. It is important to note that this decision does not necessarily means Nicholas wins his case, but rather that his case will go in front of a jury, which will decide the issues of fact set forth above.

The lesson to be learned from this case is that employees with an ADA disability are afforded certain rights to be given to them by their employers and potential employers. Employers cannot discriminate against employees based on disability. Here, the County is alleged to have unlawfully discriminated against Nicholas because he was deaf. The County also used the consulting firm's generalized analysis for all deaf people, and used it in Nicholas's situation. The consulting firm never actually met Nicholas, and as the Sixth Circuit ruled, there was an issue of fact as to whether there was ever an individualized interactive process for Nicholas. Also, this case shows that employers must make reasonable accommodations for disabled employees.

If you are an employee with a disability, it is important to remember that the ADA (and usually equivalent state law) protects you and requires potential employers to enter into an interactive process and to make reasonable accommodations for you if you are otherwise qualified for the job. If you believe your employer has discriminated against you because of a medical condition or disability, or if you want to know more about your rights, you should contact a St. Louis employment lawyer.

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